The opinion of the court was delivered by: Judge Leavitt
Argued: February 24, 2009
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge.
Bedminster Township appeals an order of the Court of Common Pleas of Bucks County (trial court) holding that two adjoining lots currently owned by two different landowners had not merged for purposes of zoning. In doing so, the trial court reversed the decision of the Zoning Hearing Board of Bedminster Township (Zoning Board) and held that the Board improperly placed the burden of proof on the landowners to establish that their predecessor in title intended to keep the lots in single and separate ownership. Because the trial court misallocated the burden of proof, we will reverse its order and reinstate the Zoning Board's order.
The facts in this case are not in dispute. The two lots in question were created by the Woodland Home Subdivision of 1960 and share a common property line. Alfred O. Werner and Ralph S. Moyer (collectively, Landowners) are the current owners.*fn1 Werner's lot, with approximately .61 acres of land, was designated as Lot 19 on the original subdivision plan and bears Bucks County Tax Parcel No. 1-21-25. Moyer's lot, measuring approximately .64 acres, was Lot 18 on the subdivision plan and is listed as Bucks County Tax Parcel No. 1-21-24.
On August 28, 2007, Landowners sent a letter to the Bedminster Township Supervisors, requesting that their lots be registered as existing non-conforming lots and that letters be sent to the Bedminster Municipal Authority authorizing the connection of each lot to the public sewer. The Township's Land Use Manager, Dawn Cook, advised Landowners on September 11, 2007, that they had not provided sufficient information to prove that the two lots had not merged into one. Accordingly, Cook advised Landowners that only one sewer line to the two lots would be authorized. Landowners filed an appeal with the Zoning Board, contending that the lots were separate and distinct lots.
At the hearing before the Zoning Board, Werner testified that although the lots were heavily wooded, unimproved vacant lots, they were nonetheless separate and distinct because they were identified by separate tax parcel numbers; he and Moyer had been separately paying taxes on each lot; and each lot had separate driveway entrances. Werner testified that there were also pins marking the property that had been in place since the lots were separately conveyed in 1999, but he had no idea who had placed the pins or when, or even if the pins were visible.
Dawn Cook, testifying on behalf of the Township, explained her decision to treat the lots as merged. Preliminarily, Cook determined that the lots, each of which measure approximately 25,000 square feet, have been undersized from the date the Township first enacted zoning in 1963. Presently, a lot must measure 32,000 square feet to be developable. Cook stated that the lots were heavily wooded and vacant, with no visible evidence of any dividing line between the properties. Cook also offered into evidence several aerial photographs that corroborated her description of the lots as undeveloped and wooded. Reproduced Record at 99a-101a. (R.R.___).
Cook next recited the history of the lots from the records of Bucks County, noting that the two lots had been held in common ownership, along with other adjoining lots, from 1960 to 1999. In 1963, Lester and Henrietta Erdman owned the two lots along with other lots in the subdivision. The Erdmans conveyed Landowners' lots, Lots 18 and 19, along with Lots 10, 11, 17, and 23 through 29 to Walter and Mary Bearns by deed dated July 30, 1963. A few days later, on August 8, 1963, the Township enacted its first zoning ordinance.*fn2
Thereafter, the Bearns continued to hold the lots in common ownership until 1970, when they conveyed Landowners' lots along with Lots 10, 17, and 23 through 29 to Raymond and Marie Bechtel. The Bechtels continued to own all these lots until February 25, 1999 when, for the first time, Lots 18 and 19 were conveyed separately. Lot 18 was conveyed to William Moyer, and Lot 19 was conveyed to Stephanie Benner. Thereafter, the lots were conveyed to Ralph Moyer and Alfred Werner, the current owners.
Cook then testified about the intent of Landowners' predecessors to integrate the lots into one large lot. According to the Township's records, Raymond Bechtel, who held the lots in common ownership with his wife from 1970 through 1999, entered into an agreement with the Township on January 13, 1993, to build and maintain a sewage treatment plant. Under the terms of this agreement, Bechtel stated that he was the owner and has title in fee simple to a parcel of land situate in Bedminster Township, Bucks County, Pennsylvania, which tract is currently unimproved, and the owner desires to improve said property by the construction of a single family residence, and which is more particularly identified as Bucks County Tax Map Parcel Nos. 01-21-7, 01-21-16, 01-21-23, 01-21-24 and 01-21-24 [sic].*fn3
R.R. 102a. Bechtel intended to construct and install a spray irrigation system to service a single-family house on the combined five lots, for which he obtained a permit from the Pennsylvania Department of Environmental Resources (DER permit). The sewage treatment plan, the maintenance agreement therefor and the DER permit were each recorded in the Bucks County Recorder of Deeds office.
Although Bechtel did not complete the project, Cook considered these documents evidence of the Bechtels' intent to integrate the five lots, including Landowners' lots, into one parcel.
Cook testified that the final factor that went into her determination that the lots had merged was the existence of an oil pipeline easement and electric pole right of way on Lot 19. The right of way crosses Lot 19 diagonally, making it extremely unlikely that a house could ever be built on the lot given the setback requirements.
The Zoning Board concluded that Landowners' parcels were part of a larger, integrated tract prior to and up to the time of the adoption of the Township's first zoning ordinance and were not separate and distinct properties. The Board noted that there was no evidence of an overt, unequivocal, physical manifestation of an intent to keep the parcels separate and distinct either prior to or after the enactment of zoning. Thus, the Board concluded the lots had merged when the zoning ordinance was enacted. Alternatively, the Board determined that the Bechtels' efforts to build a sewage treatment system, for which they ...