A Pennsylvania appellate court recently upheld a variance after finding that property owners had proven that development of their lot “will not alter the essential character of the neighborhood or district since they propose to build a single-family dwelling on the property in an area of other similar homes.”

In Riccio v. Newtown Township Zoning Hearing Board, the Commonwealth Court examined whether adjacent lots should automatically be considered as one single lot for purposes of certain requested zoning relief, and whether nonconforming lot sizes can be afforded zoning relief for use and development.

Specifically, the Commonwealth Court panel analyzed whether adjoining lots may be presumed to be one lot for purposes of a zoning application, despite each property having no shared improvements, having separate tax parcel numbers, and the zoning ordinance defining a “lot” as “a single tax parcel, notwithstanding that a deed may contain reference to several lots.”

In finding that, given the aforementioned factors, the two adjacent lots were not a single lot for purposes of the application for the requested zoning relief, the Commonwealth Court ruled that the applicant was entitled to a dimensional variance from a lot size requirement because, without such relief, the lot would be unusable; in other words, a hardship existed justifying the variance.

Background

In 2008, Lawrence Robinson acquired title to the property from the Estate of James T. Kelly. The Newtown Township Zoning Ordinance had a minimum lot size requirement of 12,000 square feet for the construction of a single-family residential dwelling. However, the property only contained approximately 9,000 square feet. On the same day, Lawrence also acquired a contiguous parcel from the same estate. The contiguous parcel contained an existing residential dwelling. Lawrence then conveyed the two parcels to himself and his wife (collectively, the “Robinsons”) via a single deed, but each parcel was described with its own, separate legal description and tax folio numbers. Further, the Subject Property and the Contiguous Parcel continued to be taxed as two separate parcels.

In 2016, the Robinsons applied for a dimensional variance from 12,000 square foot minimum lot size requirement for the proposed construction of the single-family home. At the hearing before the zoning hearing board (ZHB), the Robinsons presented testimony and evidence that in order to merge the property and the contiguous parcel “after the Township’s enactment of the minimum lot requirement in 1959, the property owner would have been required to obtain approval of a ‘reverse subdivision’ plan from the Township in accordance with the Township’s Subdivision and Land Development Ordinance, and then record that approved plan with the Delaware County Recorder of Deeds.”

The Robinsons also presented testimony that the two parcels were advertised as two independent lots, each had their own “for sale” sign, the two parcels were taxed separately, and that there were no shared improvements.

Objector Claims Hardship Is 'Self-Created'

A certain neighbor-objector argued that the property and the contiguous parcel are a single lot and, as a result, the property would need to be subdivided before the Robinsons could seek the dimensional variance. According to the objector, after this subdivision would take place, the “hardship” for the requested zoning relief would be “self-created,” such that no zoning relief could be granted.

The ZHB rejected the neighbor’s argument and approved the dimensional variance, and the trial court affirmed the ZHB’s decision.

The pertinent question on appeal was “whether the Property is a separate lot or a portion of a larger property, inclusive of the Contiguous Property, thus rendering a dimensional variance impossible to obtain since the hardship would have been self-created by the Robinsons in subdividing and creating an undersized and nonconforming lot.”

Ultimately, the appellate panel held that the ZHB was correct in concluding that the Robinsons’ properties were two individual lots. The panel noted: “The Properties have maintained separate tax folio numbers for as long as investigation could reveal and the expert testimony by [the engineer] supports the fact that the past conveyance of the Robinson Properties by single deed could not have resulted in a merging of the lots, as it could only occur through a formal ‘reverse subdivision’ process, no evidence of which exists.”

With respect to the underlying requested dimensional variance from the lot size requirement, the Commonwealth Court found that, generally speaking, a property with a nonconforming lot size in and of itself qualifies as being subject to a “hardship” requiring issuance of a variance (of course, subject to certain other requirements for a variance). Similarly, the Commonwealth Court highlighted that denying zoning relief for this type of property “would sterilize the land” such that a hardship exists, and zoning relief should be granted.

For assistance with zoning and land development matters, including, but not limited to those with issues concerning lot sizes and development of individual or multiple properties, please contact Andrew Stoll at 215.918.3589 or astoll@foxrothschild.com.