           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Samuel Land Company,                     :
               Appellant                 :
                                         :
      v.                                 : No. 714 C.D. 2018
                                         : ARGUED: October 15, 2018
Zoning Board of Adjustment               :
of The City of Pittsburgh,               :
City of Pittsburgh and Daniel            :
Guttman                                  :

BEFORE:      HONORABLE MARY HANNAH LEAVITT, President Judge
             HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                      FILED: November 8, 2018

      Appellant Samuel Land Company (Appellant) appeals from the Court of
Common Pleas of Allegheny County’s (Trial Court) April 18, 2018 Order affirming
the Zoning Board of Adjustment of the City of Pittsburgh’s (Board) September 17,
2017 decision denying Appellant’s request for dimensional variances, which
Appellant sought to further a development proposal of real property located at 355
Lehigh Avenue in Pittsburgh, Pennsylvania, (Property). We vacate and remand to
the Trial Court with instructions regarding disposition of this matter.
      The Property, which is zoned R2-M, is comprised of two contiguous lots (Lot
22 and Lot 23) which were created on September 20, 1872 through the subdivision
of part of a larger piece of land known as the Woodwell Property. Record (R.) at 79.
Each of these two lots is 25’ by 120’ (i.e., 3,000 square feet) in size. Id. Lot 22 and
Lot 23 eventually came to be owned by the Nash family, who sold both lots to
Appellant in April 1984. Id. at 75-78.
       The record reflects that the Property has been treated, at various points
throughout the years, as both one unified plot and two separate parcels. Prior to
purchasing the Property, Appellant, acting on behalf of then-owner Beatrice Nash
Marshall, sought and received dimensional variances for the Property in early 1984
regarding occupancy and setback requirements. This allowed the Property to turn an
existing two-family home on Lot 22 into one that could accommodate three families.
Id. at 83-88. Appellant described the Property in the 1984 variance application as
covering 6,000 square feet and included a sketch labelling the entire 50’ by 120’ area
as “Lot # 227.” Id. at 83-86.1 In addition, Allegheny County has given the Property
one identification number for tax assessment purposes, 84-K-227, rather than
providing Lot 22 and Lot 23 with their own respective and unique numbers. Id. at
81. However, the 1984 deed of sale between Ms. Marshall and Appellant describes
the Property as being “[a]ll those two certain lots or places of ground situate[d] in
the Seventh (formerly Twentieth) Ward, of the City of Pittsburgh, County of
Allegheny, and State of Pennsylvania, being lots marked and numbered Twenty-two
(22) and Twenty-three (23) in Woodwell’s Plan of Lots[.]” Id. at 75.
       On February 20, 2017, Appellant filed an application with the Board, in which
it requested dimensional variances regarding lot size and setback requirements, in
furtherance of its desire to build a two-unit residential building upon Lot 23. Id. at
57-60; Appellant’s Br. at 9.2 The Board held a hearing regarding Appellant’s
       1
          Appellant likely described the Property in this manner due to Pittsburgh’s then-active
requirement that a multi-family home could not be situated on a lot smaller than 6,000 square feet.
See R. at 156 (former Pittsburgh Zoning Code § 985.13 (1958), titled “Minimum Lot Area for
Multiple-Family Dwellings.”). Currently, Lot 22 contains a three-unit apartment building, while
Lot 23 is undeveloped. R. at 98.
       2
         Pittsburgh’s Zoning Code currently requires all properties zoned R2-M to have an overall
minimum lot size of 3,000 square feet and a minimum lot size per unit of 1,800 square feet.
Pittsburgh Zoning Code § 903.03.C.2 (1999). Appellant’s requested lot size variance, if it had been



                                                2
variance application on June 22, 2017.3 On September 14, 2017, the Board issued a
decision denying the application. Therein, the Board cited Cottone v. Zoning
Hearing Board, 954 A.2d 1271 (Pa. Cmwlth. 2008), which it interpreted as standing
for the proposition that “[w]here two abutting lots under common ownership are
rendered undersized by the passage of a zoning ordinance, it is a rebuttable
presumption that the lots have become one.” Board’s Findings of Fact and
Conclusions of Law at 3. The Board found that Appellant had failed to rebut the
presumption that Lots 22 and 23 had merged into one unified 6,000-square-foot lot,
covering the entirety of the Property, and was thus improperly pursuing dimensional
variance relief from a hardship of its own making (i.e. seeking to subdivide the
Property into undersized lots and then obtain permission to build residences at a
greater per-unit density than authorized by the Zoning Code). Id. at 3-4. In addition,
the Board determined that Appellant had not offered
               evidence of any kind of unique condition associated with
               the . . . Property, as required under the variance standards,
               and failed to identify any kind of hardship that would
               prevent use of the [P]roperty for the uses permitted in R2-
               M Districts or for the continued use of the [P]roperty for 3
               [residential] units, as allowed pursuant to the 1984
               Certificate of Occupancy.




approved by the Board, would have enlarged Lot 22’s size to 3,248 square feet, while
correspondingly decreasing Lot 23’s size to 2,752 square feet. See R. at 97. Consequently, Lot 22
would have approximately 1,083 square feet of area per residential unit, while Lot 23 would have
1,376 square feet of area per residential unit. Board’s Findings of Fact and Conclusions of Law at
2.
       3
          Appellee Daniel Guttman (Guttman), “owner and resident of 351 Lehigh Avenue,
appeared at the hearing in opposition to the requested variances, citing concerns related to the
potential impact of the proposed structures [upon] the circulation of the light and air, and his
enjoyment of his property.” Board’s Findings of Fact and Conclusions of Law at 3.



                                                3
Id. at 5. The Board also concluded that Appellant’s sought-after relief from the
Zoning Code’s lot size requirements would constitute “significant deviations . . .
[that] would have a detrimental impact on the essential character of the [surrounding]
neighborhood.” Id.4
       Appellant then appealed the Board’s decision to the Trial Court on October
13, 2017. The Trial Court took no additional evidence and subsequently affirmed the
Board on April 18, 2018, holding that the Board had properly determined that Lots
22 and 23 had merged pursuant to Cottone. Tr. Ct. Op. at 4-5. The Trial Court
dismissed Appellant’s argument, per Loughran v. Valley View Developers, 145 A.3d
815 (Pa. Cmwlth. 2016), that the merger of lots doctrine was inapplicable here due
to the fact it was not codified in the Zoning Code. The Trial Court interpreted the
Loughran holding as recognizing that an adverse party can establish that merger has
occurred by offering evidence regarding a property owner’s actions and intent, even
where the relevant municipality has not expressly adopted the merger doctrine. Tr.
Ct. Op. at 5. Additionally, the Trial Court agreed that Appellant had failed to show
the Property’s unique characteristics justified the granting of a dimensional variance
regarding lot size, noted that a variance request cannot be based upon the mere desire




       4
         The Board denied Appellant’s request for dimensional variances from the Zoning Code’s
setback requirements as well, opining that this was necessary because the Board had declined to
grant variances from the aforementioned lot size strictures. Board’s Findings of Fact and
Conclusions of Law at 5.



                                              4
to maximize the financial return from a property, and found that the desired lot size
variances were not de minimis in nature. Id. at 6-7.5 This appeal followed.6
       Appellant argues, in essence, that the Board erred by improperly determining
that Lots 22 and 23 had merged, despite the lack of a merger provision in the Zoning
Code, and by denying Appellant’s dimensional variance requests on the basis of that
original, erroneous determination. See Appellant’s Br. at 14-21.
       We agree. As we stated in Loughran,
               [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; first and foremost, merger of lots is a creature
               of local ordinance, not common law. A merger
               presumption would create an irrational distinction based
               on ownership by prohibiting a landowner from purchasing
               and using an adjoining lot despite its use being open to all
               other purchasers. A merger presumption would
               contravene the longstanding principle that whether or not
               a lot retains an exception from conformance because its
               area or dimension predates a zoning ordinance is not
               personal to the owner, but runs with the land. Moreover, a
               presumption that merger of lots occurs whenever two
               adjoining lots come into common ownership would have
               widespread confiscatory effects and would risk sterilizing
               significant swaths of land throughout the Commonwealth.
       5
        The Trial Court also mentioned, without additional comment, that “the Board found that
the requested deviations would have a detrimental impact on the essential character of the
neighborhood.” Board’s Findings of Fact and Conclusions of Law at 7.

       6
          Where a trial court takes no additional evidence in a zoning matter, our standard of review
is restricted to determining whether the relevant local administrative agency committed an abuse
of discretion, i.e., made a decision not backed by substantial evidence, or an error of law. Larsen
v. Zoning Bd. of Adjustment of City of Pittsburgh, 672 A.2d 286, 288-89 (Pa. 1996); see also Banks
v. Civil Serv. Comm’n, 708 A.2d 890, 891 n.1 (Pa. Cmwlth. 1998) (“[I]n order to reverse the
decision of [a local] agency, [an appellate court] must conclude that the findings of the agency are
totally without support in the record.”) (emphasis in original).



                                                 5
145 A.3d at 821-22 (emphasis added) (citations omitted).7 Thus, given that
Pittsburgh has not incorporated a merger provision into its Zoning Code, the Board
erred by determining that Lots 22 and 23 had merged, and the Trial Court erred in
affirming the Board’s decision.8 Consequently, we vacate the Trial Court’s April 18,
2018 Order and remand to the Trial Court, with instructions to further remand this
matter to the Board for a determination of whether, in light of Lots 22 and 23
retaining their identities as separate lots, Appellant is entitled to the dimensional
variances it desires regarding the applicable lot size and setback requirements.


                                              __________________________________
                                              ELLEN CEISLER, Judge

Judge McCullough did not participate in the decision of this matter.




       7
          Loughran emanated from a jurisdiction that, unlike Pittsburgh, is governed by the
Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-
11202 (MPC). See Lamar Advantage GP Co. v. Zoning Hearing Bd. of Adjustment of City of
Pittsburgh, 997 A.2d 423, 435 (Pa. Cmwlth. 2010) (“[T]he MPC does not apply to appeals of
decisions of the [City of Pittsburgh’s] ZBA.”). Even so, Loughran’s holding that the merger of
lots doctrine is a creature of statute, rather than common law, is still applicable here.

       8
          Appellees baldly claim that “the Zoning Code allows for the merger of two lots into a
single ‘zoning lot’” but do not point to any specific provision in the Zoning Code that supports this
assertion. See Guttman Br. at 19; City of Pittsburgh’s Joinder Br. at 1 (“The City of Pittsburgh
hereby joins in the entire brief filed on August 15, 2018 by Daniel Guttman. The City of Pittsburgh
will not be filing its own brief.”).


                                                 6
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Samuel Land Company,                 :
               Appellant             :
                                     :
      v.                             : No. 714 C.D. 2018
                                     :
Zoning Board of Adjustment           :
of The City of Pittsburgh,           :
City of Pittsburgh and Daniel        :
Guttman                              :



                                   ORDER


      AND NOW, this 8th day of November, 2018, the Court of Common Pleas of
Allegheny County’s (Trial Court) April 18, 2018 Order is hereby VACATED. This
matter is REMANDED to the Trial Court, with instructions to remand to the Zoning
Board of Adjustment of the City of Pittsburgh for proceedings consistent with this
Opinion.
      Jurisdiction relinquished.


                                     __________________________________
                                     ELLEN CEISLER, Judge
