        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James J. Loughran,                     :
                                       :
            v.                         : No. 1378 C.D. 2015
                                       : Argued: May 12, 2016
Valley View Developers, Inc.,          :
Zoning Hearing Board of Nether         :
Providence Township and Estate of      :
Milton Parker by and through its       :
Executor Howard Parker                 :
                                       :
Appeal of: Estate of Milton            :
Parker, Inc.                           :


BEFORE:     HONORABLE MARY HANNAH LEAVITT, President Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION BY
SENIOR JUDGE COLINS                                   FILED: August 17, 2016

            On appeal, the Estate of Milton B. Parker (Estate) argues that the
Delaware County Court of Common Pleas (Trial Court) erred as a matter of law
when it affirmed the January 9, 2015 order issued by the Nether Providence
Township Zoning Hearing Board (ZHB) concluding that 306 West Rose Valley
Road and 304 West Rose Valley Road (the Property) had merged into a single lot,
thereby denying the Estate dimensional variances to construct a single-family
residence on the Property. For the following reasons, we hold that the merger of
lots doctrine has no application to a nonconforming lot located in a jurisdiction
where the zoning ordinance adopted by the local governing body does not contain
a merger of lots provision and we reverse the order of the Trial Court and remand
to the Trial Court with instructions to remand this matter to the ZHB to issue a
written decision granting or denying the dimensional variances requested by the
Estate.1
               By way of background, the instant matter concerns two lots located in
Wallingford, Nether Providence, Delaware County Pennsylvania, which were
originally part of a single parcel. The matter began when Valley View Developers
(Applicant), which had an agreement to purchase the Property from the Estate,
applied for dimensional variances to construct a new two-story dwelling on an
undersized lot in the R-2 district. Applicant sought: (i) a variance of 2 plus or
minus feet from the minimum side yard requirement of 20 feet; (ii) a variance of
38 plus or minus feet from the minimum side yard aggregate requirement of 60
feet; and (iii) a variance from the minimum lot size of 14,000 square feet (0.321
acres) to the existing lot area of 10,314 square feet (0.237 acres).
               A hearing on Applicant’s variances was held before the ZHB on May
15, 2006. At the hearing, Applicant represented that the Property was part of a
three lot subdivision recorded in 1977. (2006 ZHB Hearing Transcript (2006 H.T.)
at 4-5, 93a-94a.) The Township Solicitor stated he was not aware of whether the
Property would have been undersized at the time of the subdivision. (2006 H.T. at
18, R.R. at 104a.) Appellee James J. Loughran appeared pro se and was granted
party status. Mr. Loughran presented a petition opposing the variances signed by
him, his wife, Jessica F. Loughran, and other neighboring property owners. (2006

1
  Where, as here, the Trial Court has not taken additional evidence, our scope of review is limited
to determining whether the ZHB has committed an error of law or an abuse of discretion.
Hertzberg v. Zoning Board of Adjustment of City of Pittsburgh, 721 A.2d 43, 46 (Pa. 1998). The
issues before this Court for review present pure questions of law; therefore, our standard of
review is plenary. Lamar Advertising GP Co. v. Zoning Hearing Board of Adjustment of the City
of Pittsburgh, 997 A.2d 423, 438 (Pa. Cmwlth. 2010).

                                                2
H.T. at 28-29, R.R. at 112a-113a.) Mr. Loughran testified that granting the zoning
relief sought would change the character of the neighborhood and that he opposed
any use of the Property because the lot was undersized. (Id.) At the conclusion of
the hearing, the ZHB voted 3-2 in favor of the variances, but it did not issue a
written decision in support of its vote containing findings of fact and conclusions
of law.
                 On June 14, 2006, Mr. Loughran filed an appeal with the Trial Court
on the basis that: (a) the December 1, 1976 subdivision plan was not properly
recorded, rendering it invalid; (b) the variances are not the minimum variances that
will afford relief; and (c) the ZHB acted outside of its authority by granting
variance relief for a lot that had been improperly subdivided. On November 14,
2008, the Estate was granted party status as the successor-in-interest to Applicant.
On June 21, 2009, Mr. Loughran filed a Petition to Remand to the ZHB arguing
that the subdivision creating the Property was not subdivided in accordance with
the Municipal Planning Code2 (MPC) and that, even if the subdivision was valid,
the Property may have merged with 306 West Rose Valley Road. On June 4,
2009, the Trial Court remanded the matter to the ZHB. (June 4, 2009, Trial Court
Remand Order.) Prior to the hearing before the ZHB, the Estate filed a motion to
vacate the remand order, which was denied by the Trial Court.
                 On December 19, 2011, the ZHB held a second hearing on the
variance request to address the issues raised by the Trial Court’s remand order. On
January 9, 2012, the ZHB issued an order and on January 20, 2012 the ZHB issued
a decision containing findings of fact and conclusions of law. In its order, the ZHB



2
    Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.
                                                3
voted 3-1 on a motion stating that the Property was not properly subdivided and
does not exist as a single lot. (January 9, 2012 ZHB Order.)
            In making its findings, the ZHB identified a 2003 Deed consolidating
ownership of the two lots as the key document missing from the original hearing.
(ZHB Decision, F.F. ¶36.) In its conclusions of law, the ZHB focuses on 2006,
when 306 West Rose Valley Road was sold to Carl W. Kavalkovich by the Estate,
as the point in time when an illegal subdivision took place because 306 West Rose
Valley Road had merged with the Property prior to 2006.         (ZHB Decision,
Conclusions of Law (C.L.) ¶7.) In its conclusions of law, the ZHB noted the
absence of a merger provision in the Nether Providence Township zoning
ordinance but did not find the presence or absence of a merger provision to be
determinative of whether merger had taken place. (ZHB Decision, C.L. ¶¶1-3.)
The ZHB also concluded that the issue of whether or not the lots had merged was
material to the request for variances and to the Trial Court’s remand. (ZHB
Decision, C.L. ¶7.)
            The Estate filed a notice of appeal from the ZHB’s decision following
remand. On June 30, 2015, the Trial Court denied the appeal and affirmed the
decision and order issued by the ZHB following remand. The Estate appealed to
this Court and the Trial Court issued a Rule 1925(a) opinion on October 7, 2015.
The Trial Court concluded that there was substantial evidence in the record to
support the conclusion that the Property and 306 West Rose Valley Road had
merged into a single property. Neither the Trial Court nor the ZHB found or
concluded that the 1977 subdivision of the Property was improper; rather the ZHB
and the Trial Court both concluded that the Property had merged with 306 West



                                         4
Rose Valley Road subsequent to the 1977 subdivision to create a single continuous
lot.3
               The Estate argues that the ZHB and Trial Court erred as a matter of
law by applying the merger of lots doctrine4 to deny dimensional variances to
construct a residence on the Property because the Property is located in a



3
  Mr. Loughran continues to dispute the validity of the 1977 subdivision creating 302 West Rose
Valley Road, the Property, and 306 West Rose Valley Road. This issue was not raised at the
initial hearing before the ZHB and, therefore, has been waived. Mr. Loughran contends that he
could not have raised the legality of the subdivision before the ZHB by exercising due diligence
because Applicant failed to apprise the ZHB that the subdivision was invalid. This argument is
circular; in addition, Mr. Loughran’s argument that he exercised due diligence is belied by the
fact that the bounds and description of 302 West Rose Valley Road, Mr. Loughran’s own
property, is defined in his deed by reference to the Plan of Property creating the subdivision.
Even if Mr. Loughran had not waived his challenge to the original subdivision plan, at no point
during this extensive litigation was the conclusion reached that the 1977 subdivision was invalid
or were facts presented that would support this conclusion. Instead, both the ZHB and the Trial
Court concluded that the two lots had merged prior to 2006, a conclusion that could not be
reached if the lots had never been subdivided. Because we conclude that Mr. Loughran waived
his challenge to the 1977 subdivision by raising this issue for the first time on appeal to the Trial
Court, we need not address whether Mr. Loughran was required to file a cross-appeal pursuant to
Pennsylvania Rule of Appellate Procedure 511 to preserve this issue for review by this Court.
Pa. R.A.P. 511, note (the 2002 amendments to the rule did not remove the requirement that a
party file a cross-appeal; instead, the amendments clarified that a party must file a cross-appeal
when it is aggrieved and that the determination of whether a party is aggrieved by the action
below is a substantive question determined by the effect of the action on the party); see Tri-
County Landfill, Inc. v. Pine Township Zoning Hearing Board, 83 A.3d 488, 507-510 (Pa.
Cmwlth. 2004) (objectors were aggrieved by the ZHB’s determination that appellant had a
nonconforming right to its use of the property and were required to file a cross-appeal on this
issue, even though objector was not aggrieved by the ZHB’s denial of appellant’s dimensional
variance).
4
  The doctrine of merger of lots, which is concerned with the physical merger of parcels of land,
should not be confused with the doctrine of merger of estates, which provides that a lesser estate
is merged into a greater estate whenever the two estates meet in the same person; merger of
estates has no application in zoning law. Township of Middletown v. Middletown Township
Zoning Hearing Board, 548 A.2d 1297, 1299 (Pa. Cmwlth. 1988).

                                                 5
jurisdiction that has not adopted a merger of lots provision in its zoning ordinance.5
We agree.
               The MPC enables municipalities throughout the Commonwealth to
enact zoning and subdivision ordinances. The MPC is permissive; rather than
requiring municipalities to enact land use ordinances, the MPC grants a
municipality the power to determine whether zoning and subdivision ordinances
should be adopted and establishes substantive and procedural requirements a
municipality must follow if it decides to exercise this power. The structure of the
MPC protects and promotes interests shared by the Commonwealth as a whole,
while granting each local municipality the authority and autonomy to craft zoning
ordinances that protect and promote interests which predominate within its own
bounds.      The development and use of land varies widely throughout the
Commonwealth; restrictions one municipality may find beneficial for its
community may be of no moment to another.
5
  The Estate also argues that the issue of whether 306 West Rose Valley Road had merged with
the Property was waived by Mr. Loughran because he failed to raise it at the initial May 15, 2006
hearing before the ZHB where Applicant sought dimensional variances to construct a single-
family residence on the Property. We disagree. The request for a dimensional variance is a
request to adjust the zoning regulations of the district in which the property is located to allow
for use of the property in a manner consistent with the permitted use(s) in that district. Tidd v.
Lower Saucon Township Zoning Hearing Board, 118 A.3d 1, 8 (Pa. Cmwlth. 2015). Under the
MPC, a variance may only be granted if an applicant has shown that the zoning regulations have
created an unnecessary hardship unique to the property rather than a hardship impacting the
zoning district as a whole. Valley View Civic Association v. Zoning Board of Adjustment, 462
A.2d 637, 640 (Pa. 1983). In order to establish that there is an unnecessary hardship unique to
the property, an applicant must demonstrate that five criteria specified by the MPC have been
met, including that the hardship is due to unique physical conditions peculiar to the property.
Section 910.2 of the MPC, added by Act of December 21, 1988, P.L. 1329, 53 P.S. § 10910.2.
Mr. Loughran objected to any use of the Property because of its size. This challenge was
sufficient to preserve the issue of merger of lots; if the Property had merged to form one larger
property then the Property would not be undersized and the Estate would not be entitled to
zoning relief due to unique physical conditions peculiar to the Property.

                                                6
              Our interaction with land, expressed through use and development, is
constantly changing over time. This change begets nonconformance where what
was desirable by a community at one point in time falls out of favor, boundaries
change, and needs vary.6         Nonconformance creates a great challenge for the
regulation of land, often putting the needs of the past in conflict with those of the
present or future and the rights of an individual landowner in conflict with the
rights and expectations of the landowner’s neighbors or community.                        The
particular issue of nonconformance we are concerned with in the instant matter is
nonconformance that arises when one of two separate yet contiguous lots held by
the same owner has been rendered undersized by the passage of an ordinance
requiring a larger lot size than what was previously required for the permitted use
in the zoning district where the lots are located; in such instances, the undersized
lot becomes a “nonconforming lot.”                   Many municipalities within the
Commonwealth have adopted provisions in their zoning ordinances specifically
aimed at addressing this event, often by requiring that the nonconforming lot
merge with the commonly held adjoining lot in order to create one contiguous lot
that is in conformity with the applicable zoning ordinance.7 Yet, adoption of a


6
  The MPC identifies and defines three distinct types of nonconformance: a nonconforming lot; a
nonconforming structure; and a nonconforming use. Section 107 of the MPC, 53 P.S. § 10107.
The instant matter is concerned with a nonconforming lot. A “nonconforming lot” is defined by
the MPC as “a lot the area or dimension of which was lawful prior to the adoption or amendment
of a zoning 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.” Id.
7
  See, e.g., Cottone v. Zoning Hearing Board of Polk Township, 954 A.2d 1271, 1278 (Pa.
Cmwlth. 2008) (quoting Polk Township Zoning Ordinance, art. 5 § 5.9(c)(2)(b) and (c));
Montoro v. Bethlehem Township Zoning Hearing Board, 574 A.2d 116, 118-119 (Pa. Cmwlth.
1990) (examining the application of Section 1300.3 of the Bethlehem Township Zoning
Ordinance); Rogers v. Zoning Hearing Board of East Pikeland Township, 520 A.2d 922, 925
(Pa. Cmwlth. 1987) (quoting East Pikeland Township Zoning Ordinance § 1201); Appeal of
                                              7
merger of lots provision is not the only avenue available to local municipalities in
the event that a nonconforming lot is created by changes to the zoning ordinance.
Many municipalities within the Commonwealth have declined to adopt ordinances
specifically addressing nonconformance or requiring merger of adjacent lots held
by the same owner in the event that a zoning ordinance renders one of those lots
nonconforming, preferring instead to address nonconformance through the process
established by the MPC for issuing variances. In each instance, the decision to
adopt or forgo a merger provision is a decision that requires the governing body of
the local municipality to balance a host of often competing interests and settle upon
the policy that is deemed most beneficial for the particular needs of the community
the governing body serves.
               In instances where a local governing body has adopted a provision
addressing merger of lots, disputes arising from the application and effect of these
ordinances have often reached the courts, particularly where the issue is focused
upon whether the conforming and nonconforming lots have been held in single and
separate ownership. From the plethora of cases interpreting and applying like local
merger of lots ordinances, uniform standards and principles have emerged, which
have coalesced into a merger of lots doctrine.8 However, this merger of lots

Dodge, 402 A.2d 273, 275 (Pa. Cmwlth. 1979) (examining the application of Section 2001-B of
the Upper Merion Township Zoning Ordinance).
8
  Pursuant to the merger of lots doctrine, a merger of lots provision in the applicable ordinance is
the starting point in the analysis of whether merger has taken place. Cottone, 954 A.2d at 1276-
1277. If a municipality has adopted a merger of lots provision, the next step is to determine the
effective date of the ordinance provision that has altered the area or dimension of conforming
lots, as the effective date generally controls which party carries the evidentiary burden. In re
Moyer, 978 A.2d 405, 409 (Pa. Cmwlth. 2009); Cottone, 954 A.2d at 1276-1277; West Goshen
Township v. Crater, 538 A.2d 952, 954-955 (Pa. Cmwlth. 1988). The burdened party must then
establish an overt, unequivocal physical manifestation of the owner’s intent to integrate or to
keep separate commonly held adjoining lots. Tinicum Township v. Jones, 723 A.2d 1068, 1072
(Pa. Cmwlth. 1998) (the burdened party demonstrated an objective intent to keep the two lots
                                                 8
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. Tinicum Township v. Jones, 723
A.2d 1068, 1071 (Pa. Cmwlth. 1998); Township of Middletown, 548 A.2d at 1300.
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.               Parkside Associates, Inc. v. Zoning
Hearing Board of Montgomery Township, 532 A.2d 47, 49 (Pa. Cmwlth. 1987). 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.
Parkside Associates, 532 A.2d at 49; see also In re Moyer, 978 A.2d 405, 412 (Pa.
Cmwlth. 2009). 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.          Jacquelin v. Horsham Township, 312 A.2d 124, 126 (Pa.
Cmwlth. 1973); compare Hunt v. Zoning Hearing Board of Conewago Township,
61 A.3d 380, 384 (Pa. Cmwlth. 2013) (discussing validity variances).
               Despite the absence of a merger presumption, application of the
merger of lots doctrine by courts analyzing the effect of merger of lots ordinances
adopted by local communities on nonconforming lots has fueled confusion


separate); West Goshen, 538 A.2d at 955 (the burdened party failed to demonstrate an objective
intent to keep the lots separate; instead, the two lots had merged); see also, e.g., Alpine, Inc. v.
Abington Township Zoning Hearing Board, 654 A.2d 186, 189 (Pa. Cmwlth. 1995); Price v.
Bensalem Township Zoning Hearing Board, 569 A.2d 1030, 1034 (Pa. Cmwlth. 1990); Lebeduik
v. Bethlehem Township Zoning Hearing Board, 596 A.2d 302, 305 (Pa. Cmwlth. 1991).
                                                 9
regarding the application of this doctrine to restrict the use of nonconforming lots
in the absence of an ordinance provision adopted by the local governing body. In
two unreported cases, Batchelder v. Philadelphia Zoning Board of Adjustment, (Pa.
Cmwlth. No. 945 C.D. 2014, filed June 5, 2015), 2015 WL 5446668, slip. op. and
Black v. Zoning Hearing Board of Township of Cheltenham, (Pa. Cmwlth. No.
1732 C.D. 2007, filed July 16, 2008), 2008 WL 9398993, slip. op, this Court
addressed argument put forth by appellants that the merger of lots doctrine, as
drawn from case law, applied even though the local municipalities had not adopted
merger of lots provisions. In both Batchelder and Black, we held that the issue was
immaterial because, even assuming arguendo that the merger of lots doctrine
applied absent a specific ordinance provision, the burdened party had failed to
meet its evidentiary burden by demonstrating a physical manifestation upon the
land of the owners’ intent to merge the conforming and nonconforming lots.
Batchelder, slip. op. at 23; Black, slip. op. at 6. Neither Batchelder nor Black held
that the merger of lots doctrine was applicable in jurisdictions where the governing
body had not adopted a merger provision.
             In Springfield Township v. Halderman, 840 A.2d 528 (Pa. Cmwlth.
2004), the landowners acquired two lots by a single deed containing a separate
legal description for each lot and subsequently deeded the two lots back to
themselves via two separate deeds. Id. at 529. The municipality in which the land
was located filed suit against the landowners alleging that the separate deeds
constituted an illegal subdivision. Id. at 530. The trial court concluded that an
illegal subdivision had taken place, relying on the merger of lots provision in the
municipality’s zoning ordinance, which provided:



                                         10
            Where two or more adjacent lots, one or more of which is
            non-conforming, are owned by the same owner, and the
            ownership of the lots is concurrent, such lots shall be
            combined to create conforming lots, or to lessen the
            nonconformity if it is not possible to create all
            conforming lots.

Id. (quoting Springfield Township Zoning Ordinance § 1101(C)). This Court
reversed the trial court, holding that the merger of lots provision of the ordinance
was inapplicable because neither lot was nonconforming as to area or dimension.
Halderman, 840 A.2d at 531. In reaching its holding, this Court, characterizing the
municipality’s merger provision, stated, “[t]his provision, in essence, codifies the
case law doctrine of merger.” Id. at 530. Yet, in so stating this Court was not
identifying the common law as a source of authority for merger of lots where two
adjoining lots are held in common ownership and one of the lots is nonconforming;
rather, this Court was distinguishing the analysis applicable when a merger of lots
ordinance controls the question before it as inapplicable to the actual legal issue
controlling in Halderman.
            In sum, analysis by the courts of the effect of merger provisions
adopted by local governing bodies on adjoining lots held in common ownership
when one of the lots is rendered nonconforming by a subsequent zoning ordinance
has given rise to a merger of lots doctrine. However, this body of law has no
application in the absence of a merger of lots provision in the zoning ordinance
adopted by the local governing body in the jurisdiction where the lots are located.
The common law may not be employed to restrict the use of nonconforming lots;
any restriction is purely statutory and is a matter committed to the legislative
discretion of local governing bodies by the MPC.



                                        11
             Nether Province Township does not have a provision within its zoning
ordinance requiring two adjacent lots held in common ownership to merge when
one of the lots has been rendered undersized by the passage of a zoning ordinance
requiring a larger lot size for the use permitted in the zoning district where the lots
are located. The Property at issue in the instant matter is located in a single-family
residential district, the lot is under the size required to construct a single-family
residence, and the Property was held by the same owner as an adjoining lot at the
time it was rendered undersized by passage of a zoning ordinance requiring a
larger lot size to construct a single family residence.        Therefore, the Estate
requested a dimensional variance in order to adjust the applicable zoning
regulations to allow for reasonable use of the Property.
             The ZHB and the Trial Court concluded that because the governing
body of Nether Province Township had not adopted a merger of lots provision, the
issue of whether the Property had merged with the adjoining lot or was an
undersized nonconforming lot entitled to zoning relief had to be decided by
applying the standards and principles gleaned from cases originating within
municipalities that had adopted a merger of lots provision. This was error. Absent
a merger of lots provision in a municipality’s land use ordinance, the merger of lots
doctrine is inapplicable. Therefore, we conclude that the Trial Court erred in
remanding this matter to the ZHB to make additional factual findings to determine
whether a merger of lots had taken place, the ZHB erred in determining that 306
West Rose Valley Road and the Property had merged, and the Trial Court erred in
affirming the ZHB’s determination.
             This, however, is not the end of the matter. The ZHB has yet to issue
a written decision granting or denying the dimensional variances requested by the


                                          12
Estate. It is incumbent upon the ZHB to determine in the first instance whether the
Estate has established that the five criteria specified by the MPC for grant of
dimensional variances has been met, including that the variances sought are the
minimum variances that will afford relief and the least modification of the
applicable zoning regulation.9 Accordingly, we reverse the order of the Trial Court
and remand with instructions to remand this matter to the ZHB to issue a written
decision granting or denying the Estate dimensional variances to construct a single-
family residence on the Property.



                                           __________ ___________________________
                                           JAMES GARDNER COLINS, Senior Judge




9
  The MPC requires that an applicant demonstrate that: (i) there are unique physical conditions
peculiar to the property and that the unnecessary hardship is due to those conditions; (ii) because
of the physical conditions, there is no possibility that the property can be developed in strict
conformity with the zoning ordinance and that a variance is needed to enable reasonable use of
the property; (iii) unnecessary hardship has not been created by the applicant; (iv) the variance is
not detrimental to the public welfare; and (v) the variance is the minimum variance that will
afford relief and is the least modification of the regulation at issue. 53 P.S. § 10910.2.

                                                13
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


James J. Loughran,                       :
                                         :
            v.                           : No. 1378 C.D. 2015
                                         :
Valley View Developers, Inc.,            :
Zoning Hearing Board of Nether           :
Providence Township and Estate of        :
Milton Parker by and through it’s        :
Executor Howard Parker                   :
                                         :
Appeal of: Estate of Milton              :
Parker, Inc.                             :


                                     ORDER

            AND NOW, this 17th day of August, 2016, the Order of the Delaware
County Court of Common Pleas in the above-captioned matter is hereby
REVERSED and REMANDED to the Court of Common Pleas of Delaware
County with instructions to REMAND to the Nether Providence Township Zoning
Hearing Board to issue a written decision containing findings of fact and
conclusions of law granting or denying the dimensional variances requested by the
Estate of Milton Parker, Inc., as the successor-in-interest to Valley View
Developers, Inc.
            Jurisdiction relinquished.



                                    __________ ___________________________
                                    JAMES GARDNER COLINS, Senior Judge
