L. L. An v. ZHB of O'Hara Twp., & Twp. of O'Hara ( 2020 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Li Lan An, :
Appellant :
:
v. : No. 776 C.D. 2019
: ARGUED: February 11, 2020
Zoning Hearing Board of O’Hara :
Township, and Township of O’Hara :
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: May 12, 2020
Appellant Li Lan An (An) appeals the Court of Common Pleas of Allegheny
County’s (Trial Court) June 6, 2019 order, in which the Trial Court affirmed the
Zoning Hearing Board of O’Hara Township’s (Board) June 18, 2018 Decision
pertaining to 1.2 acres of R-1 residentially zoned real property (Property) owned by
An. Through this Decision, the Board determined that the Property, located at 703
Woodland Drive in Pittsburgh, Pennsylvania, did not consist, as claimed by An, of
two preexisting, nonconforming lots, i.e., lots that were rendered smaller and
narrower than permitted under a zoning ordinance enacted after the lots’ creation. In
addition, the Board concluded that An was not entitled to dimensional variance relief
from the Township of O’Hara (Township) Zoning Ordinance’s lot size and lot width
requirements. We affirm in part and vacate and remand in part.
Facts and Procedural History
On March 22, 1950, the Rodgers Acres Plan of Lots (Rodgers Acres Plan)
was recorded with the Allegheny County Recorder of Deeds, subdividing a large
parcel of land in the Township into 21 lots, including Lots 16 and 17, which are
central to the current dispute. Transcripts of Testimony (T.T.) at 109.1 The boundary
between Lot 16 and Lot 17, as shown on the Rodgers Acres Plan, ran in a generally
northwest to southeast direction. Id.
In October 1967, a “Two Lot Subdivision Plan” (1967 Plan) was created for
Robert B. McWilliams, who owned Lots 16 and 17 at that time. T.T. at 76-77. The
1967 Plan identified Lots 16 and 17, using a dotted line to demarcate the then-
existing boundary between them, and called for Lots 16 and 17 to be reconfigured
by a new property line that divided them in roughly a north-northwest to south-
southeast direction. Id. The 1967 Plan lists the area on the western side of the new
lot line as encompassing 40,000 square feet and the area on the eastern side as
encompassing 50,962 square feet. Record evidence shows that both this latter
measurement and new lot line comport with the current dimensions and western
boundary of the Property. Id. at 76-77, 106, 108, 141; Notes of Testimony (N.T.),
5/7/18, at 14, 23. The record also shows that the western half is listed on tax records
as a single 41,000-square-foot tax parcel. T.T. at 108. On December 16, 1969, the
Township’s Planning Commission approved McWilliams’ “request for a two-lot
subdivision[.]” Id. at 75. This letter of approval does not state whether the approval
was for the 1967 Plan, which, again, was drafted in October 1967. Id.
There is no documentation in the record indicating what happened with this
two-lot subdivision during the 15 years after the Planning Commission’s approval.
The record reflects that the Property, which comprises the eastern half of this
1
The Court of Common Pleas of Allegheny County electronically filed the record in
multiple parts, designated as “Trial Court Record,” “Transcripts of Testimony,” and “Trial Court
Opinion.” Some of this matter’s evidence is found in only one of these parts of the record, while
other pieces of evidence have been duplicated and are included in more than one of the parts of
the record.
2
subdivision, was sold in 1984 and 2000. Id. at 87-88. The deed for the 2000 sale
describes the Property, in relevant part, as “being parts of Lots Nos. 16 and 17 in
[the] Rodger’s [sic] Acres Plan” and identifies the Property as having one “block
and lot number”: 290-B-112. Id. This number is the same as the Property’s single,
current tax parcel number. See id. at 106, 108, 141. In addition, the record contains
a document entitled “A Revision of a Portion of the Rodgers Acres Plan [Plan Book
Volume] 45, [Page] 117[,]” which was created in 1984, just prior to the
aforementioned sale. Trial Court Record (R.) at 141. This document depicts the
Property, as well as the original boundary line between Lots 16 and 17, and includes
the descriptors “Lot 16” and “Lot 17” on the portions of the Property that were
originally parts of those two lots. See id.
On July 19, 2002, the Property was purchased by An and Sanford Leuba
(Leuba), who were married at that time. The deed memorializing this sale describes
the Property in substantially the same way as the 2000 Property deed. T.T. at 93.2
In December 2002, the Township enacted its current Zoning Ordinance. Of
relevance to this matter, this Zoning Ordinance mandates that lots zoned R-1
residential have a minimum area of 40,000 square feet and a minimum width of 15
feet. Township of O’Hara Zoning Ordinance (Zoning Ordinance) § 72-4.18(A)-(B).
Leuba and An subsequently divorced. Leuba conveyed his joint interest in the
Property to An via a deed recorded on July 10, 2015, making her the sole owner of
the Property at that point in time. R. at 119-25; Board’s Decision, 6/12/18, Findings
of Fact (F.F.), ¶5.
2
None of the parties dispute the validity of the deeds in this matter. The relevant issue, as
explained infra, is that there are significant gaps in the record, so it is difficult to ascertain how the
Property came to be in its present configuration, or the complete chain of title from 1950 to the
present day.
3
On November 22, 2017, An submitted to the Township an “Application for
Minor (Preliminary/Final) Subdivision Approval” requesting permission to
subdivide the Property into two lots. R. at 139. This proposed subdivision would
create R-1 zoned lots smaller than the Zoning Ordinance-mandated 40,000 square
feet. Id.; see Zoning Ordinance § 72-4.18(A). On December 6, 2017, An also filed
an application with the Board, requesting a dimensional variance from this minimum
lot size requirement. R. at 84-85.
On January 8, 2018, the Board convened a public hearing to consider An’s
dimensional variance request. At the beginning of the hearing, Scott Chermak, the
Township’s code enforcement officer, explained that An’s proposed subdivision
plan violated the Zoning Ordinance regarding minimum lot width and that the
subdivision plan thus necessitated a dimensional variance from that requirement as
well. Board Hr’g Tr., 1/8/18, at 6, 16; see Zoning Ordinance § 72-4.18(B) (minimum
width for R-1 residential-zoned lots is 150 feet); R. at 72-73 (Board hearing notices).
Despite An’s request for the dimensional variances, An’s attorney also argued
that the Property actually consisted of two preexisting, nonconforming lots and that
variance relief was not actually necessary. Board Hr’g Tr., 1/8/18, at 7-14. He also
stated that many lots near the Property are smaller than 40,000 square feet,
specifically referencing parcels on Woodland Drive and other, nearby roads;
according to An’s attorney, this showed that the proposed subdivision would not
produce lots that were out-of-character with the surrounding neighborhood. Id. at
14-16. Chermak responded that at least one of the nearby lots mentioned by An’s
attorney was actually zoned R-2 residential and, thus, was subject to different
minimum size requirements than the Property. Id. at 17. An’s attorney subsequently
4
stated that An was seeking permission to subdivide the Property because “[s]he
wants to sell [the vacant portion] as a separate lot.” Id. at 18.
Louis Marsico, current owner of a parcel adjacent to the Property, testified
that Lots 16 and 17 were “re-subdivided” in 1977, resulting in configuration of his
parcel and the Property as 2 unitary lots. Board Hr’g Tr., 1/8/18, at 20, 31-32.
Marsico claimed that he owned both his parcel and the Property after this alleged
resubdivision. Id. at 21, 31. There is no documentation in the record supporting or
refuting Marsico’s assertions that Lots 16 and 17 were “re-subdivided” in 1977 or
that he once owned the entirety of both lots. Marsico also disputed the contention
that many nearby R-1 parcels are smaller than the Zoning Ordinance-required 40,000
square feet, and made broad objections to An’s variance request. Id. at 20-22, 30-
33.3
An testified that when she and Leuba purchased the Property in 2002, she
assumed it consisted of two lots because of the way it was described in the deed she
received from the previous owners. Id. at 36-37.
At the close of the hearing, the Board denied An’s application for variance
relief by a two-to-one vote. Id. at 41. The Board issued a written decision issued on
February 9, 2018, in which it stated that
[An] has not met the requirements of the [Pennsylvania]
Municipalities Planning Code [(MPC)4] for a variance . . .
to wit:
a. The hardship is self-induced. The Board
specifically concludes that the proposed reduction
of lot area and frontage will create undesirable
conditions.
3
The Board also heard from several other individuals, who all opposed An’s request. Board
Hr’g Tr., 1/8/18, at 23-30, 33-35, 39-40.
4
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
5
b. The change is not minimal.
c. The essential character of the community will be
affected. Indeed, the Board concludes as a matter of
law that the proposed changes to the property will
not blend with the overall sense of the community
and will impair the surrounding property.
d. The change would not be the least intrusive of all
options.
R. at 98-101; Board’s Decision, 2/9/18, Conclusions of Law (C.L.) ¶9(a)-(d).5
5
The Township’s Zoning Ordinance contains a section governing the granting of variances,
which states, in relevant part:
The Board may grant a variance provided the following findings are
made where relevant in a given case.
1. That there are unique physical circumstances or
conditions, including irregularity, narrowness or
shallowness of lot size or shape, or exceptional
topographical or other physical conditions peculiar to the
particular property, and that the unnecessary hardship is due
to such conditions and not the circumstances or conditions
generally created by the provisions of the Zoning Ordinance
in the neighborhood or district in which the property is
located.
2. That because of such physical circumstances or
conditions, there is no possibility that the property can be
developed in strict conformity with the provisions of the
Zoning Ordinance and that the authorization of a variance is
therefore necessary to enable the reasonable use of the
property.
3. That such unnecessary hardship has not been created by
the appellant.
4. That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the
property is located, nor substantially or permanently impair
the appropriate use of development of adjacent property, nor
be detrimental to the public welfare.
6
An then appealed the Board’s denial to the Trial Court on February 20, 2018.
On appeal, An argued to the Trial Court that the Board had erred by denying her
request for variance relief and, in addition, had completely failed to address the
question of whether the Property was comprised of two preexisting, nonconforming
lots. An’s Statutory Appeal, 2/20/18, ¶¶9-17.
The Trial Court remanded this matter to the Board on March 27, 2018,
directing the Board to “allow [An] to develop theory of non-conform [sic] pre-
existing [sic] use.” Trial Ct. Or., 3/27/18, at 1. The Board complied and held a
second hearing on May 7, 2018. An testified that she had done additional research
during the intervening time period; she declared that she was certain the Property
contained two lots and that, had she known that the Property was a single unitary
parcel, she would never have purchased it in 2002. Board Hr’g Tr., 5/7/18, at 8-10.
Id. In addition, An told the Board she had regularly mowed the Property’s yard since
2006, because she had hoped that her son would eventually build a home on the
vacant part of the Property. Id. at 9. An said circumstances had since changed and
“now[,] for economic reasons, I have no use for [that part of the Property], and the
[cost of] upkeep and maintenance is very high.” Id. She also claimed that her
research had revealed that most of the lots in her area, including some created
through previously granted subdivisions, were smaller that the Zoning Ordinance-
required 40,000 square feet. Id. at 10. Despite these claims, An never explained the
5. That the variance, if authorized, will represent the
minimum variance that will afford relief and will represent
the least modification possible of the regulation in issue.
Zoning Ordinance § 72-18.155. This wording is identical to that used in the MPC’s variance test.
See Section 910.2(a) of the MPC, added by the Act of December 21, 1988, P.L. 1329, 53 P.S. §
10910.2(a).
7
nature of her research to the Board, nor did she provide the Board with any specific
evidence supporting her claim that her Property was, in fact, two lots.
An’s attorney presented documents pertaining to the Rodgers Acres Plan and
the 1967 Plan, as well as a title report and several of the deeds issued over the years
for the Property. Id. at 11-18. He argued that this evidence showed that the Property
was really comprised of two portions of what were originally Lots 16 and 17. Id. at
18-21, 37-43. According to An’s attorney, these portions had never been joined as
one piece of land and were still two separate lots, the existence of which predated
the Township’s adoption in 2002 of its current Zoning Ordinance. Id. An’s attorney
acknowledged that the Property only had one tax parcel number, but called that fact
“curious,” as he had been unable to determine how exactly that had happened. Id. at
21.
The Board then questioned An’s attorney about the import of the dotted line
on the 1967 Plan, which traced the original boundary between Lots 16 and 17. Id. at
22-24. An’s attorney argued, in essence, that the 1967 Plan had not eliminated the
original lot boundary between Lot 16 and Lot 17, but rather, had created four lots
out of the original two. Id. at 22-28. The Board’s members expressed skepticism
towards these arguments, pointing out that the square footage listed for the portion
of the 1967 Plan east of the new dividing line was virtually identical to the square
footage of the Property. Id. at 23-28. Julie Jakubec, the Township’s manager, also
informed the Board that the Property had been depicted on the Township’s tax maps
as one parcel of land, with rather consistent boundaries, since the Planning
Commission had approved McWilliams’ two-lot subdivision in 1969. Id. at 24-25.
Louis Marsico again appeared and testified in opposition to An’s variance
request. He informed the Board that his tract is “one tax parcel” and that his house,
8
which was built in 1978, straddles the old boundary line between Lots 16 and 17.
Board Hr’g Tr., 5/7/18, at 28-30. According to Marsico, he and An each owned “two
half lots[.]” Id. at 48. Marsico did not believe, however, that this gave either him or
An ownership of two lots; rather, the “half lots” had lost their independent identities
as a result of being subdivided. Id. at 48-50.6 Though the maps in the record support
Marsico’s claims that his lot has one tax number and that his house straddles the old
boundary line between Lots 16 and 17, see, e.g., T.T. at 105-07, the remainder of his
testimony at the Board’s May 2018 hearing is neither confirmed nor disproven by
any other substantive evidence in the record.
At the conclusion of the hearing, the Board unanimously voted to deny An’s
request for variance relief. Board Hr’g Tr., 5/7/18, at 62. The Board memorialized
this decision through a formal decision issued on June 18, 2018. In this decision, the
Board stated that it found Marsico’s testimony to be credible and reiterated its
previous determination that An had not established that she was entitled under the
MPC to her sought-after variances, because
a. The hardship is self-induced [and] the proposed
reduction of lot area and frontage will create undesirable
conditions[;]
b. The change is not minimal[;]
c. The essential character of the community will be
affected [and] the proposed changes to the [P]roperty will
not blend with the overall sense of the community and will
impair the surrounding propert[ies; and]
d. The change would not be the least intrusive of all
options.
6
Several other individuals also registered their opposition at this hearing to An’s request
for variance relief. Board Hr’g Tr., 5/7/18, at 31-37, 55, 59-60. In addition, there was again
discussion regarding whether there were a significant number of nonconforming lots already in
existence near the Property. See id. at 43-47, 50-59.
9
Rawle at 105; Board’s Decision, 6/18/18, C.L. ¶¶9-10. In addition the Board made the
following findings of fact and conclusions of law regarding whether the Property
actually consisted of two preexisting, nonconforming lots:
[An] now advances the position that her [P]roperty
contains two recorded lots which predate the enactment of
the revised Zoning Ordinance of 2002. That revision
required a larger square footage and a longer frontage for
any proposed lots in a new subdivision. [An] took title to
her [P]roperty in July of 2002 shortly before the 2002
revision of the Township[’s] Zoning Ordinance. . . .
[An] primarily relies on two facts: first, that the Rodgers
[Acres] Plan of lots shows [L]ots 16 and 17 were recorded
in the Recorder’s Office of Allegheny County and second,
that the deed [for the Property] recited the fact that both
lots were conveyed to [An and Leuba] in July of 2002 and
subsequently re-conveyed to [An] by deed pursuant to her
divorce in 2015 with the same reference to the two lots.
Unfortunately neither deed contained a meets [sic] and
bounds description. The real estate tax department of
Allegheny County references the property as one tax
parcel, i.e.[,] 290 B 112. Further, . . . Chermak testified
that the only document that the Township was able to
locate was a plan showing the property as one parcel in
1967. At some point in the deed descriptions it appears that
the deed drafter wanted the property to appear to be one
parcel.
....
The Board . . . finds as a fact that [An] has used the subject
property as a single lot and has not attempted to maintain
the . . . [P]roperty as two separate and distinct lots. [An]
herself testified that she mowed her large yard every week
to keep the [P]roperty looking attractive but did nothing to
physically separate the two parcels one from the other.
R. at 104; Board’s Decision, F.F. ¶¶4-5, 8.
The Board finds that [An] has not met her burden that her
property consists of two pre-existing non-conforming lots.
At best she has parts of two pre-existing [sic] lots which
10
she purchased and used as one lot with a single structure
and residence. . . .
The Board concludes as a matter of law, that even if [An]
had two separate and distinct pre-existing nonconforming
lots, she has not met her burden that they were not merged
after the passage of the Zoning Ordinance revision in
2002. The Board concludes that the burden is on [An] to
demonstrate by clear and convincing evidence as to
physical improvements that would keep the lots from
merging under a new and more restrictive ordinance. Lots
are presumed to merge as necessary to comply with a
zoning ordinance’s lot size requirements where they are
under common ownership prior to the passage of the
ordinance. It is the landowner’s burden to rebut this
presumption by proving an intent to keep the lots separate
and distinct. In doing so it is not the landowner’s
subjective intent but rather some overt or physical
manifestation of intent to keep the lots separate and
distinct. No such physical manifestation has been shown
in this case.
R. at 105; Board’s Decision, C.L. ¶¶11-12. An appealed to the Trial Court, which
took no additional evidence and affirmed the Board on June 6, 2019. This appeal
followed.
Arguments On Appeal
An’s Position
An presents several arguments for our consideration. First, An claims that the
Board erred by determining that the hardship pertaining to developing the Property
was self-induced. An’s Br. at 9-16. She argues that relief is warranted under the
relaxed standards for granting dimensional variances, and states that the “Lot 16”
portion of the Property cannot be developed without such relief, as well as that
subdividing the Property in accordance with her proposal would not affect the
character of the neighborhood or affect public safety. Id. at 12-13. As she did before
the Board, An alleges that there are many other lots in the area which do not conform
11
to the Zoning Ordinance’s minimum lot size and lot width requirements for R-1
parcels. Id. at 13. She also insists that the sought-after variances represent the
minimum necessary to afford relief, as they would result in only slight deviations
from the Zoning Ordinance’s requirements. Id. at 13-14. An cites to Jacquelin v.
Horsham Township, 312 A.2d 124 (Pa. Cmwlth. 1973), as well as several similar
cases,7 to support her statement that “where a dimensional nonconformity predates
the applicable zoning ordinance, Pennsylvania law requires that some relief be
granted in order to allow the owner some productive use of his property.” An’s Br.
at 14-16.
Next, An claims that the Board erred by finding that the Property did not
consist of two preexisting, nonconforming lots. Id. at 16-19. She states that the
record evidence actually establishes that the portions of what used to be Lots 16 and
17 which comprise the Property were never combined, even after the Township’s
Planning Commission approved the two-lot subdivision for McWilliams in 1969.
An argues that this is shown by record evidence regarding chain of title, deeds, and
development plans for the Property and by the shift in terrain between the
aforementioned lot fragments, as well as by the fact that her house and driveway are
entirely on what used to be part of Lot 17, and that no parcel has 701 Woodland
Drive as its address (i.e., the house numbers on that side of Woodland Drive skip
from 699 directly to 703). Id. at 18-20.
Finally, An claims that the Board erroneously determined that her preexisting,
nonconforming lots had merged. Id. at 20-21. She argues that the question of merger
only comes into play where a municipality has expressly incorporated a merger
7
Poster Advertising Co., Inc. v. Zoning Bd. of Adjustment, 182 A.2d 521 (Pa. 1962);
Tinicum Twp. v. Jones, 723 A.2d 1068 (Pa. Cmwlth. 1998); Rudd v. Lower Gwynedd Twp. Zoning
Hearing Bd., 578 A.2d 59 (Pa. Cmwlth. 1990).
12
provision into its zoning ordinance. Id. at 20-21. Furthermore, An maintains that,
even assuming merger applies in this instance, the Board erroneously placed the
burden of proof on her to show that the Property’s fragments of Lots 16 and 17 had
not merged, when it was actually the Township’s burden to show that they had
merged. Id. at 21-23.
Township’s Position
The Township responds8 that An failed to satisfy any of the five prongs of the
variance test, and that the Board’s findings and conclusions to that effect are well-
supported both factually and legally. Township’s Br. at 11-18. The Township notes
that, while the standard is not as high for granting dimensional variances as it is for
use variances, it is well-established that dimensional variances are not to be given
out freely in the absence of the applicant satisfying this test. Id. at 12-13. According
to the Township, An merely wants to maximize the development and financial
potential of the Property, which is not sufficient justification for obtaining variance
relief. Id. at 13-14. The Township argues that An’s reliance on Jacquelin and the
other, similar cases is misplaced, because it presupposes that the Property consists
of two preexisting, nonconforming lots, which (according to the Township) is not
true, and because those cases did not deal with subdivision applications that would
result in nonconforming lots. Id. at 18-20. The Township points out that An is
effectively trying to combine two mutually exclusive arguments; either the Property
is one lot and, thus, dimensional relief is necessary in order to facilitate subdivision,
or the Property is two preexisting, nonconforming lots, in which case dimensional
relief would be unnecessary. Id. at 19-20.
8
The Board filed a letter with our Court, in which it stated that it joined the Township’s
Brief.
13
Next, the Township argues that An failed to show that the Property consists
of two preexisting, nonconforming lots. Rather, the record conclusively shows that
the current configuration of the Property was created in 1969, when the Township’s
Planning Commission approved the McWilliams subdivision. Id. at 20-25.
According to the Township, the McWilliams subdivision extinguished Lots 16 and
17, dissolved the previous boundary between them, and created two new lots, i.e.,
the Property and Marsico’s parcel. Id. The Township maintains that the more recent
record evidence, including the Allegheny County tax maps and the deeds
memorializing the Property’s ownership transfers in 1984, 2000, and 2002, support
the conclusion that the Property is one unified lot. Id. at 26-29. The Township states
that this is more than sufficient evidentiary support for the Board’s findings.
Township’s Br. at 29-30. The Township asserts that the level of evidentiary support
compares favorably to that which the Commonwealth Court deemed sufficient in a
similar case, DiCicco v. City of Philadelphia (Pa. Cmwlth., No. 2625 C.D. 2015,
filed May 10, 2017), 2017 WL 1927897. Township’s Br. at 29-30.
As for the various deeds’ references to Lots 16 and 17, the Township states
that these are merely historical reference points, tying the Property’s boundaries and
territory back to the Rodgers Acres Plan that originally created Lots 16 and 17, and
are of the type that are common in deed descriptions. Id. at 30.
Next, the Township agrees with An that merger does not apply here. Id. at 31-
32. The Township argues this is because the alleged preexisting, nonconforming lots
never existed in the first place. Id. In the alternative, the Township asserts that the
Board properly placed the burden of proof on An to disprove merger. Id. at 32-34.
The Township cites In re Appeal of Moyer, 978 A.2d 405 (Pa. Cmwlth. 2009), for
the proposition that the two nonconforming lots, if they existed at one point, were
14
presumed to have merged when the Township adopted its current Zoning Ordinance
in 2002, in order to comply with the new minimum lot size and width requirements.
Township’s Br. at 32-34. According to the Township, it was An’s burden to show
that this merger had not happened, a burden which she failed to satisfy. Id. at 34.
Finally, the Township argues that, even if the Property does consist of two
preexisting, nonconforming lots, the Zoning Ordinance would have barred her
proposed subdivision. Id. at 34-36. In support of this argument, the Township cites
Section 72-16.128 of the Zoning Ordinance, which prohibits building a single-family
home on a nonconforming lot if that lot is held in common ownership with other,
adjacent lots. Township’s Br. at 34-35.9 Thus, as both of the Property’s
nonconforming lots would be owned by An, she could not build a home on the
currently vacant fragment that was originally part of Lot 17. Id. at 35-36.
9
This section of the Zoning Ordinance reads as follows:
Nonconforming Lots of Record
In any district in which single-family dwellings are permitted,
notwithstanding limitations imposed by other provisions of this
[Zoning] Ordinance, a single-family dwelling and customary
accessory buildings may be erected on any single lot of record at the
effective date of adoption or amendment of this [Zoning] Ordinance,
provided said lot was not created in violation of prior existing
zoning and subdivision regulations. Such a lot must be in separate
ownership and not of continuous frontage with other lots in the same
ownership. This provision shall apply even though such lot fails to
meet the requirements for area or width or both that are generally
applicable in this district, provided that yard dimensions and other
requirements not involving area or width or both of the lot shall
conform to the regulations for the district in which such lot is
located. Variance of area, width and yard requirements shall be
obtained only through action of the . . . Board.
Zoning Ordinance § 72-16.128.
15
Discussion
Since the Trial Court took no additional evidence, our standard of review is
restricted to determining whether the Zoning Board committed an abuse of
discretion or an error of law. Valley View Civic Ass’n v. Zoning Bd. of Adjustment,
462 A.2d 637, 639-40 (Pa. 1983). “We may conclude that the [Zoning] Board abused
its discretion only if its findings are not supported by substantial evidence. . . . By
‘substantial evidence’ we mean such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. at 640 (citations omitted).
Broadly speaking, An pursues two, mutually exclusive lines of argument.
First, the Property consists of one, undivided parcel, for which variance relief is
warranted in order to allow An to pursue her desired subdivision plan. Second, the
Property is made up of two preexisting, nonconforming lots, which thus renders
variance relief unnecessary. We address each of these contentions in turn.
Variance to Divide Unitary Parcel
Assuming that the Property is one, unitary parcel, rather than two preexisting,
nonconforming lots, we hold the Board properly determined that An failed to satisfy
the criteria for obtaining her desired dimensional variances. “To justify the grant of
a dimensional variance, courts may consider multiple factors, including the
economic detriment to the applicant if the variance was denied, the financial
hardship created by any work necessary to bring the building [or property] into strict
compliance with the zoning requirements and the characteristics of the surrounding
neighborhood.” Hertzberg v. Zoning Bd. of Adjustment of City of Pittsburgh, 721
A.2d 43, 50 (Pa. 1998). “The quantum of proof required to establish unnecessary
hardship is indeed lesser when a dimensional variance, as opposed to a use variance,
is sought.” Id. at 48.
16
However, this does not mean that “dimensional requirements . . . [are] ‘free-
fire zones’[.]” Soc’y Created to Reduce Urban Blight v. Zoning Bd. of Adjustment of
City of Phila., 771 A.2d 874, 877 (Pa. Cmwlth. 2001). To that effect, our appellate
courts have “consistently reject[ed] requests for dimensional variances where proof
of hardship is lacking. Where no hardship is shown, or where the asserted hardship
amounts to a landowner’s desire to increase profitability or maximize development
potential, the unnecessary hardship criterion required to obtain a variance is not
satisfied even under the relaxed standard set forth in Hertzberg.” Soc’y Hill Civic
Ass’n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178, 1187 (Pa. Cmwlth. 2012).
Indeed, “[a] variance, whether labeled dimensional or use, is appropriate ‘only where
the property, not the person, is subject to hardship.’” Yeager v. Zoning Hearing Bd.
of City of Allentown, 779 A.2d 595, 598 (Pa. Cmwlth. 2001) (quoting Szmigiel v.
Kranker, 298 A.2d 629, 631 (Pa. Cmwlth. 1972)) (emphasis in original). Thus, the
onus is on the applicant to firmly establish that “a substantial burden . . . attend[s]
all dimensionally compliant uses of the property, not just the particular use [that the
applicant has chosen].” Yeager, 779 A.2d at 598 (emphasis in original).
As noted above, both An and her attorney admitted that her subdivision
application, and the related dimensional variance she requested, were rooted in
economic concerns, i.e., An’s desire to reap a profit, and divest herself of a financial
encumbrance, by selling off the undeveloped portion of the Property. See Board Hr’g
Tr., 1/8/18, at 18; Board Hr’g Tr., 5/7/18, at 9. Rather than attempt to show that the
Property could not be developed in compliance with the Zoning Ordinance’s
dimensional requirements, An instead put forth two propositions: first, refusing to
grant the desired variances would impair her ability to use the Property as she
desired, and second, subdividing the Property into undersized lots would not change
17
the character of the surrounding area, due to the putative plethora of nearby,
nonconforming lots. See, e.g., Board Hr’g Tr., 1/8/18, at 14-16, 37-39; Board Hr’g
Tr., 5/7/18, at 9-10. These claims fall far short of the substantive evidence needed to
justify An’s desired dimensional variances. Therefore, the Board did not err by
concluding that An’s supposed hardship regarding developing the Property was
“self-induced.” Board’s Decision, 6/18/18, C.L. ¶9(a).
For these reasons, we affirm the portion of the Board’s decision that denied
An’s request for a dimensional variance.
Alleged Preexisting Nonconforming Lots
The more complicated matter stems from the Board’s reasoning regarding
whether the Property consists of two preexisting, nonconforming lots.
Unfortunately, the Board did not thoroughly address the serious gaps and
inconsistent evidence in the record. It merely found that “[a]t some point in the deed
descriptions[,] it appears that the deed drafter wanted the [P]roperty to appear to be
one parcel” and noted that the Property had only one tax parcel number. Without
discussion, the Board deemed Marsico’s testimony to have been “factual, accurate
and persuasive.” See id., F.F. ¶¶5-6; Board Hr’g Tr., 1/8/18, at 20-22, 30-33; Board
Hr’g Tr., 5/7/18, at 28-30, 48-50. The Board sidestepped much of the confused and
contradictory record evidence by assuming that the Property consisted of two lots
prior to the enactment of the current Zoning Ordinance in 2002, and then explaining
why, in its view, the two lots were now one unitary parcel that was coterminous with
the boundaries of the Property. See Board’s Decision, 6/18/18, F.F. ¶8; id., C.L.
¶¶11-12.
The Board’s attempt to avoid these thorny problems only served to further
complicate its analysis, as parts of the Board’s Findings of Fact contradict each other.
18
To wit, the Board noted that “Chermak testified that the only document that the
Township was able to locate was a plan showing the property as one parcel in 1967
[i.e., the 1967 Plan].” Id., F.F. ¶5. However, the Board also stated that
Marsico . . . testified he purchased property including parts
of Lots 16 and 17 that are in the Rodgers Drive property
in 1977. He constructed his home on those parts of the two
lots that face Rodgers Drive. He subsequently sold off the
remaining parts of Lots 16 and 17 as a single parcel. Thus,
he combined parts of the two “lots” into one lot which he
subsequently conveyed to this Applicant or her
predecessors in title.
Id., F.F. ¶6.
This creates a blatant paradox. If the 1967 Plan showed An’s Property as one
unified lot, the Board could not reasonably find Marsico credible when he said that
he combined parts of Lots 16 and 17 to create the Property at some point after 1977.
Either the Property was one lot in 1967, which would mean that Marsico’s testimony
was inaccurate, or the Property remained two lots until Marsico became involved,
which would mean that the 1967 plan showing the Property as one lot would have
to be disregarded. Both things cannot simultaneously be true. Moreover, it is unclear
how the Board could have deemed credible Marsico’s claims that he subdivided Lots
16 and 17 in 1977, or shortly thereafter, then combined portions of those lots to
create the Property, and then sold the Property to a heretofore unidentified buyer or
buyers, when there is no substantive record evidence, in the form of deeds,
subdivisions plans, or other documentation, that lends the slightest credence to his
statements. Indeed, Marsico could not possibly have subdivided Lots 16 and 17 in
1977, because there is no dispute that those lots had previously been subdivided
through the Planning Commission’s approval of McWilliams’ request in 1969.
19
This is in contrast to DiCicco, the case cited by the Township in its appellate
brief. In DiCicco, the landowners claimed that their property contained two
preexisting, nonconforming lots and sought permits to build a single-family home
on each one. Slip op. at 1-3. The Philadelphia Department of Licenses and
Inspections (L&I) initially granted these permits; however, L&I revoked the permits
shortly thereafter, explaining that, though the property had recently been given two
tax parcel numbers, zoning records showed that the property was, in actuality, a
single lot. Id. at 1. Ultimately, this Court affirmed the Philadelphia Zoning Board of
Adjustment’s (ZBA) decision to uphold L&I’s revocation of the permits. Id. at 2.
The record in DiCicco conclusively established that the landowners’ property had
previously existed as a single, undivided zoning lot with 1 street address and 1 tax
parcel number for more than 60 years, at minimum, and had been conveyed in both
1969 and 2013 via deeds “that included both parcels [i.e., the putative preexisting,
nonconforming lots] but stated separate legal descriptions for each parcel.” Id. at 3-
5. In addition, the record showed that a house had been built on this property in 1952,
one which straddled what the landowners claimed was the boundary line between
the alleged preexisting, nonconforming lots. Id. at 4. The only evidence, so to speak,
that these nonconforming lots even existed were the initially granted L&I permits
themselves, in which the landowners’ property was described as consisting of two
lots, each with a separate mailing address. Id at 1-4. We therefore ruled that the
ZBA’s determination that the landowners’ property was one unified lot was
supported by substantial evidence. Id. at 26-35.
In DiCicco, however, the Philadelphia Zoning Board of Adjustment issued
thorough, detailed findings of fact and conclusions of law. Moreover, the record
evidence was not nearly as muddled as it is here. Slip op. at 17-38; 2017 WL
20
1927897, at *11-*17. The Board’s decision here was not nearly as thorough, nor was
it adequately supported by the record. DiCicco is thus clearly distinguishable from
the matter currently before us.
Furthermore, the Board erred in concluding that the two preexisting,
nonconforming parcels, if they had ever existed, had presumptively merged as a
result of the Zoning Ordinance being enacted in 2002, and then incorrectly placed
the burden on An to disprove this assumption. The “merger of lots doctrine is only
triggered where a local municipality has adopted a merger of lots provision. It is
axiomatic that merger of lots shall not be presumed merely because two adjoining
lots come into common ownership[, as] merger of lots is a creature of local
ordinance, not common law.” Loughran v. Valley View Developers, Inc., 145 A.3d
815, 821-22 (Pa. Cmwlth. 2016). The Township’s Zoning Ordinance does not
contain a merger provision and, instead, declares that “[i]t is the intent of this
[Zoning] Ordinance to permit [preexisting] nonconformities to continue until they
are removed, but not to encourage their survival.” Zoning Ordinance § 72-
16.127(B). Thus, the Board committed an error of law by determining that the
concept of merger of lots was even applicable here.10
Nor does the Township’s remaining argument, i.e., that the Zoning Ordinance
bars development of commonly owned, adjoining, nonconforming lots, save this
portion of the Board’s Decision. Section 72-16.128 of the Zoning Ordinance, upon
which this argument is based, states in relevant part that
10
The Township concedes as much by agreeing with An that merger does not apply here.
Township’s Br. at 31-32. However, the Township’s reliance on In Re Appeal of Moyer, which it
cites in its Brief and through which it attempts to support its argument that An failed to satisfy her
supposed burden of proof, is entirely misplaced. To reiterate, there is no presumption that lots
under common ownership merge to satisfy the requirements of a new zoning ordinance, unless
that zoning ordinance contains a merger provision. Loughran, 145 A.3d at 821-22.
21
a single-family dwelling and customary accessory
buildings may be erected on any single [preexisting,
nonconforming] lot . . . provided said lot was not created
in violation of prior existing zoning and subdivision
regulations. Such a lot must be in separate ownership and
not of continuous frontage with other lots in the same
ownership.
Zoning Ordinance § 72-16.128. The plain language of this provision merely prevents
An from building a home on the vacant, putatively preexisting, nonconforming lot
herself; it does not bar her from selling this vacant lot to another individual, who
would then be free to erect a single-family home on the lot. See Adams Outdoor
Advert., LP v. Zoning Hearing Bd. of Smithfield Twp., 909 A.2d 469, 483 (Pa.
Cmwlth. 2006) (“[T]he primary objective of interpreting ordinances is to determine
the intent of the legislative body that enacted the ordinance. . . . Where the words in
an ordinance are free from all ambiguity, the letter of the ordinance may not be
disregarded under the pretext of pursuing its spirit.”). Given that An merely seeks to
have her Property recognized as being two preexisting, nonconforming lots, in the
alternative to her request for dimensional variances, Section 72-16.128 is irrelevant
at this juncture.
For these reasons, we conclude the Board’s decision that the Property is not
two preexisting, nonconforming lots was insufficiently reasoned, partially
unsupported by substantial evidence, and partially based on an error of law.
Accordingly, we will vacate the portion of the Board’s decision addressing whether
the Property consists of one parcel or two, and we will remand for further
proceedings consistent with this opinion.
Conclusion
In sum, we affirm the Trial Court’s June 6, 2019 order, insofar as it affirms
the Board’s denial of An’s request for dimensional variance relief. However, we
22
otherwise vacate this order, to the extent that it affirms the Board’s findings and
conclusions that the Property either was never two preexisting, nonconforming lots,
or that these preexisting, nonconforming lots existed at one point, but merged upon
the enacting of the 2002 Zoning Ordinance. In addition, we remand in part to the
Trial Court, with instructions that it further remand this matter in part to the Board,
so that the Board can properly resolve the question of whether the Property is, in
fact, one parcel or two preexisting, nonconforming lots.
__________________________________
ELLEN CEISLER, Judge
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Li Lan An, :
Appellant :
:
v. : No. 776 C.D. 2019
:
Zoning Hearing Board of O’Hara :
Township, and Township of O’Hara :
ORDER
AND NOW, this 12th day of May, 2020, the Court of Common Pleas of
Allegheny County’s (Trial Court) June 6, 2019 order is hereby AFFIRMED IN
PART, insofar as it affirms Appellee Zoning Hearing Board of O’Hara Township’s
(Board) denial of Appellant Li Lan An’s request for dimensional variance relief, and
VACATED IN PART, to the extent that this order affirms the Board’s findings and
conclusions that the at-issue property either was never two preexisting,
nonconforming lots, or that these preexisting, nonconforming lots existed at one
point, but merged upon the Township of O’Hara’s enactment of a new zoning
ordinance in 2002. It is FURTHER ORDERED that this matter is REMANDED to
the Trial Court for proceedings consistent with the foregoing opinion.
Jurisdiction relinquished.
__________________________________
ELLEN CEISLER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Li Lan An, :
Appellant :
:
v. :
:
Zoning Hearing Board of O’Hara : No. 776 C.D. 2019
Township, and Township of O’Hara : Argued: February 11, 2020
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING
OPINION BY JUDGE FIZZANO CANNON FILED: May 12, 2020
I concur with the majority opinion to the extent it affirms the June 6,
2019 order of the Court of Common Pleas of Allegheny County (trial court) denying
Li Lan An (An) dimensional variance relief. Additionally, I join with the majority
opinion insofar as it concludes that the Zoning Hearing Board of O’Hara Township
(Board) erred as a matter of law by applying the merger of lots doctrine in this case
and finding that if An’s property had at one time consisted of two preexisting,
nonconforming lots, these lots were presumptively merged by virtue of the
enactment of a zoning ordinance in December 2002 by the Township of O’Hara
(Township). As the majority aptly notes, the Township’s 2002 zoning ordinance did
“not contain a merger provision.” Maj., slip op. at 21. I must, however, depart from
the majority to the extent it vacates the trial court’s order and remands the matter to
the trial court, with instructions to remand to the Board, for further findings
regarding whether the property owned by An consisted of a single parcel or two
preexisting, nonconforming lots.
An was the applicant before the Board, initially seeking dimensional
variance relief and later seeking a determination that her property consisted of two
preexisting, nonconforming lots. An had the burden to establish entitlement to her
requested relief and she simply did not meet that burden. See generally TKO Realty,
LLC v. Zoning Hearing Bd. of Scranton, 78 A.3d 732, 735 (Pa. Cmwlth. 2013)
(burden of establishing nonconformity is on the applicant); In re Appeal of Lester
M. Prange, Inc., 647 A.2d 279, 281 (Pa. Cmwlth. 1994) (burden of proving the
existence or extent of a nonconforming use rests on the property owner). The Board
properly concluded that An “has not met her burden that her property consists of two
pre[]existing non[]conforming lots . . .” and “[a]t best she has parts of two
pre[]existing lots which she purchased and used as one lot with a single structure
and residence.” Board’s Conclusion of Law No. 11; Record (R.) at 105.
The Board’s conclusion that An did not establish her property consisted
of two preexisting, nonconforming lots is supported by the record. Notably, the July
2002 deed to An and her then-husband states the property was “parts of Lots Nos.
16 and 17 in [the] Rodger’s [sic] Acres Plan,” R. at 116, the original subdivision
plan approved in 1950.1 Thereafter, as the majority notes:
In October 1967, a “Two Lot Subdivision Plan”
(McWilliams Plan) was created for Robert B.
McWilliams, who owned Lots 16 and 17 at that time.
[Transcript of Testimony (T.T.)] at 76-77. The
McWilliams Plan identified Lots 16 and 17, using a dotted
line to demarcate the then-existing boundary between
1
The Rodgers Acres Plan refers to the Rodgers Acres Plan of Lots, which was recorded on
March 22, 1950, and subdivided a large parcel of land in the Township into 21 lots, including Lots
16 and 17. See R. at 129.
CFC-2
them, and called for Lots 16 and 17 to be reconfigured by
a new property line that divided them in roughly a north-
northwest to south-southeast direction. Id. The
McWilliams Plan lists the area on the western side of the
new lot line as encompassing 40,000 square feet and the
area on the eastern side as encompassing 50,962 square
feet. Record evidence shows that both this latter
measurement and new lot line comport with the current
dimensions and western boundary of the Property.[2] Id. at
76-77, 106, 108, 141; [Notes of Testimony (N.T.)], 5/7/18,
at 14, 23. The record also shows that the western half is
listed on tax records as a single 41,000-square-foot tax
parcel. T.T. at 108.
Slip op. at 2.
The majority opinion describes certain findings of the Board as a
“blatant paradox,” stating that since the 1967 plan showed An’s property as a single
parcel, then Louis Marsico, the adjacent property owner, cannot be credible insofar
as he testified that he combined parts of Lots 16 and 17 to create An’s property in
1977. Slip op. at 19. I cannot agree with the majority’s characterization of the
Board’s findings. “Louis Marsico . . . testified that Lots 16 and 17 were ‘re-
subdivided’ in 1977, resulting in configuration of his parcel and the Property as two
unitary lots.”3 Id. at 5 (citing Board Hr’g Tr., 1/8/18, at 20, 31-32) (emphasis
added). Marsico testified that he purchased Lots 16 and 17 in 1977 and created the
parcel that An would later purchase in 2002. Id.; see also T.T., 5/7/18 at 28-31. In
response to a question from one of the Board members, Marsico confirmed that Lots
16 and 17 simply “became divided in a different way” in 1977 and resulted in the
2
The term “Property” refers to the 1.2 acres of R-1 residentially zoned real property owned
by An and identified as 703 Woodland Drive, Pittsburgh, Pennsylvania.
3
Unfortunately, the record does not include any evidence of the 1977 subdivision.
CFC-3
current configuration of the two lots “that are now designated as 290-B-112, which
is [An’s] and 290-A-108 which is [Marsico’s].” T.T., 1/8/18, at 32.
Keeping in mind, as the majority notes, that the 1950 Rodgers Acres
Plan of Lots created Lots 16 and 17 and the 1967 McWilliams Plan made Lots 16
and 17 into two differently configured lots with different boundaries, the historical
reference in the deed or deeds conveying those newly created lots would have
described those new lots as having been part of Lots 16 and 17. Indeed, the 1967
plan shows both the boundaries of the original Lots 16 and 17 (in dotted lines) and
the boundaries of the two lots formed from parts of Lots 16 and 17 (in solid lines).
Marsico’s testimony can be reasonably interpreted that he bought both of the lots
that were identified in the McWilliams Plan and then “re-subdivided” those two lots
in 1977 to convey to An the parcel that she currently owns. The term “resubdivide”
does not necessarily mean that a parcel was divided into additional lots (i.e., two lots
to four lots). Rather, it can mean that the two lots existing after the 1967 subdivision
were subdivided into two lots with the same total area, but with different legal
descriptions. The two lots created by the 1967 McWilliams Plan were each parts of
Lots 16 and 17 on the Rodgers Acres Plan. The two lots created in 1977 from the
McWilliams lots could also be parts of Lots 16 and 17 on the Rodgers Acres Plan.
In fact, the deed to An and her husband contains a reference to the parcel being
conveyed as being “parts of Lots Nos. 16 and 17.” R. at 116. Thus, Marsico’s
testimony supports the conclusion that An had a single parcel and does not contradict
the conclusion that An did not have two preexisting, nonconforming lots.
The majority also takes issue with the Board’s finding that Scott
Chermak (Chermak), the Township’s Code Enforcement Officer, testified that he
could only locate a 1967 plan showing An’s property as a single parcel. Finding of
CFC-4
Fact No. 5. The Board’s finding with regard to Chermak merely summarizes his
testimony that the only plan he could find was a 1967 plan showing An’s property
as a single parcel; the Board did not find that Chermak testified that An’s property
was in fact a single parcel in 1967. To the extent that the Board did find that An’s
property was in fact a single parcel in 1967, such a finding is supported by the 1967
plan, is not inconsistent with Marsico’s testimony that he created two unitary lots in
1977 (his own and An’s), both made up of parts of original Lots 16 and 17, and is
contrary to An’s allegation that her property consisted of two preexisting,
nonconforming lots.
Finally, and importantly, to the extent that the majority relies on this
“blatant paradox” to vacate and remand, such reliance is misplaced. An was the
applicant seeking relief, asking the Board to find that her property consisted of two
preexisting, nonconforming lots, and she bore the burden of proving her entitlement
to such relief. TKO Realty; In re Appeal of Lester M. Prange, Inc. While there is
undoubtedly a tremendous amount of confusion regarding the subdivision(s) of
original Lots 16 and 17 that occurred post-1950, An failed to present sufficient
evidence to establish the nonconforming nature of her property. The majority’s
decision to remand this matter to the trial court and, ultimately, the Board, effectively
gives An a second chance to prove her case.
For these reasons, I would affirm the Board’s decision both as to the
denial of An’s request for dimensional variance relief and the denial of her request
for a determination that her property consisted of two preexisting, nonconforming
lots.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
CFC-5