Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Appeal of Jerrehian

Commonwealth Court of Pennsylvania

March 6, 2017

In Re: Appeal of Aram K. Jerrehian, Jr. From the Decision Dated December 9, 2014 of the Zoning Hearing Board of the Township of Lower Merion Montgomery County, Pennsylvania Appeal of: Aram K. Jerrehian, Jr. In Re: Appeal of Jeffrey and Marsha Perelman From the Opinion and Order Dated December 9, 2014 of the Zoning Hearing Board of Lower Merion in the Matter of Jeffrey and Marsha Perelman Regarding the Preliminary Opinion Issued Pursuant to Section 155-105.1 of the Township Code Regarding 115 Cherry Lane, Wynnewood, PA Appeal of: Jeffrey and Marsha Perelman In Re: Appeal of Aram K. Jerrehian, Jr. From the Decision Dated December 9, 2014 of the Zoning Hearing Board of the Township of Lower Merion, Montgomery County, Pennsylvania Appeal of: Jeffrey and Marsha Perelman

          Argued: October 20, 2016

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE DAN PELLEGRINI, Senior Judge.

          OPINION

          MARY HANNAH LEAVITT, President Judge.

         Before this Court are the consolidated appeals[1] of Aram K. Jerrehian, Jr. (Jerrehian) and of Jeffrey and Marsha Perelman (the Perelmans), who challenge a land use order of the Court of Common Pleas of Montgomery County (trial court). The Perelmans challenge the trial court's holding that Jerrehian's lot had been created by a valid subdivision and had not merged into an adjacent lot. Jerrehian challenges the trial court's holding that he cannot build a house on the lot without a variance from the dimensional requirements for a buildable lot. In these holdings, the trial court affirmed the order of the Zoning Hearing Board of Lower Merion Township (Zoning Board) without taking additional evidence. We affirm in part and reverse in part.

         Background

         Jerrehian owns a lot at 115 Cherry Lane that is located in the Township's RA Residence Zoning District. The lot consists of 3.8 acres in the approximate shape of a rectangle; it measures approximately 670 feet by 200 feet. Jerrehian Land Title Indenture, Reproduced Record at 161a (R.R.). The lot's access to Cherry Lane is by a right-of-way over adjoining lots. Jerrehian's lot is unimproved, save for an abandoned in-ground swimming pool. The parties refer to Jerrehian's lot as the "Pool Lot."

         In 2013, Jerrehian sought Lower Merion Township's (Township) approval to build a single-family house on the Pool Lot. Section 105.1 of Chapter 155 of the Code of Lower Merion Township[2] authorizes a landowner to submit a proposed development plan to the Township Director of Building and Planning for a preliminary opinion on its compliance with the Township's zoning requirements. Zoning Code §155-105.1. Where the preliminary opinion is favorable, a notice of this determination must be published in a local newspaper to allow objectors an opportunity to challenge the decision. The Township issued a favorable preliminary approval to Jerrehian, and the Perelmans, who own a lot at 101-H Cherry Lane, appealed to the Zoning Board.

         The Perelmans asserted that the Pool Lot was not a valid lot created by a Township-approved subdivision plan. Further, it did not satisfy the minimum lot size requirements for a single-family home. After four days of hearings, the Zoning Board upheld the Perelmans' appeal without prejudice to Jerrehian's right to request a variance.

         The Zoning Board made detailed findings of fact about the history of the Pool Lot and lots surrounding it. The Pool Lot began as part of a tract of land known as "Hedgeley" that was assembled in the 19th century by William Winsor through a series of land acquisitions. At the time of the adoption of the Township's first Zoning Ordinance in 1927, Hedgeley was a 40-acre tract. In 1958, following the death of William Winsor's heir, James Winsor, Hedgeley was divided into four parcels by the Orphans' Court; one parcel became the Pool Lot.

         In 1961, the Township did a survey that included the four Hedgeley lots in its Lot Location Plan. That plan showed a 50-foot wide right-of-way extending to and across the Pool Lot from another right-of-way that ran from Cherry Lane. A 1968 Subdivision Plan, approved by the Township, also depicted this 50-foot right-of-way and showed that the Pool Lot had 110 feet of frontage on the right-of-way. All three plans described the right-of-way as 50 feet in width.

         In 2003, Bert and Anne O'Malley purchased two of the Hedgeley lots: the Pool Lot (115 Cherry Lane) and 103 Cherry Lane. In 2005, the O'Malleys sold 103 Cherry Lane to Dwight Stollwerck, and in 2006, they sold the Pool Lot to Jerrehian.

         The question before the Zoning Board was whether the Pool Lot, which is 3.8 acres, satisfied the dimensional requirements of the Zoning Code. Section 16A of the Zoning Code prescribes the minimum lot size and width as follows:

Lot area and width. A lot area of not less than 45, 000 square feet and a lot width of not less than 90 feet at the street line and extending from the street line to a point 25 feet beyond that point of the proposed building closest to the rear lot line shall be provided for every building hereafter erected or used for any use permitted in this district.

Zoning Code §155-16A (emphasis added) (amended February 18, 1987 by Ordinance No. 3034). Section 4 of the Zoning Code, which is the definition section, defines "street" as follows:

A right-of-way, publicly or privately owned, serving as a means of vehicular and pedestrian travel and furnishing access to abutting properties and space for sewers and public utilities.

Zoning Code §155-4B (amended April 21, 1993 by Ordinance No. 3317). Section 4 defines "street line" as "[t]he line dividing a lot from a street." Id.

         In their first issue, the Perelmans argued that the Pool Lot was not a valid lot, regardless of its dimensions. They contended that the Orphans' Court partition of Hedgeley into four lots, which created the Pool Lot, was not a valid subdivision under the Pennsylvania Municipalities Planning Code (MPC).[3]

         The Zoning Board rejected this argument. First, it observed that the Orphans' Court partition of Hedgeley into four lots was done in 1959 before the MPC had been adopted. Second, it concluded that the Orphans' Court had the authority to partition Hedgeley into four parcels based on In re Tettemer's Estate, 26 Pa. D. & C. 3d 745 (1981), affirmed without opinion, 458 A.2d 287 (Pa. Super. 1983).

         In Tettemer's Estate, heirs with interests in a 24-acre property petitioned the orphans' court to divide that property into five parts. The township objected, asserting that the property could only be divided by the township in accordance with its subdivision ordinance. The orphans' court rejected the township's contention for the stated reason that the MPC did not define "subdivision" in a way that precluded an orphans' court from doing a land partition in the course of an estate settlement. Further, the township's subdivision ordinance governed only subdivisions done to effect a lease, transfer of ownership or to develop a lot. It did not govern the work of an orphans' court done to settle an estate. Therefore, the orphans' court's partition did not interfere with the subdivision ordinance.

         Here, the Orphans' Court divided Hedgeley into four lots before the MPC was enacted. Therefore, the MPC's definition of "subdivision" is irrelevant. Further, the Township's former subdivision ordinance was substantially similar to the one at issue in Tettemer's Estate. The Zoning Board explained that Section 2 of the Former Lower Merion Subdivision Ordinance of 1948 defined "subdivision" as follows:

the division of a single lot, tract, or parcel of land into two or more lots, tracts, or parcel[s] of land, including [ ] street lines or lot lines for the purpose, whether immediate [ ] of transfer of ownership or of building development.

R.R. 52a.[4] Thus, as in Tettemer's Estate, the Township's subdivision ordinance was silent on the issue of an orphans' court distribution.

         Additionally, the Zoning Board found that the Orphans' Court partition of Hedgeley had been subsequently ratified by the Township. The Township reviewed the Orphans' Court subdivision of Hedgeley under the Township's Subdivision and Land Development Ordinance (SALDO). Accordingly, in 1961, the Township approved the Lot Location Plan, which included the Pool Lot.

         The Zoning Board then turned to the Perelmans' claim that, even if the Pool Lot were a valid lot, it merged with the lot at 103 Cherry Lane in 2003, when both lots were purchased by the O'Malleys. The Zoning Board rejected this argument. A zoning ordinance can provide for a merger of lots where two adjoining lots are owned in common and, thereafter, zoning renders one of the lots nonconforming in size. See In re Puleo, 729 A.2d 654, 656 (Pa. Cmwlth. 1999).[5]It must be demonstrated that the owners intended the two lots to merge. The Zoning Board held that the Perelmans failed to meet their evidentiary burden of proving that the common owners, the O'Malleys, took any action from which it can be inferred that they intended to merge the Pool Lot and 103 Cherry Lane into one lot.

         In sum, the Zoning Board held that the Pool Lot is a valid lot created by the Orphans' Court partition in 1959 and subsequently approved by the Township in its 1961 Lot Location Plan. It also held that the Pool Lot did not merge into the adjacent lot during the period of their brief common ownership.

         The Zoning Board then turned to the Perelmans' contention that the Pool Lot does not satisfy the dimensional requirements for a residential lot set forth in Section 16A of the Zoning Code.[6] The Pool Lot, at 3.8 acres, greatly exceeds the minimum lot size of 45, 000 square feet. However, it is also required to have a 90-foot lot width, which is measured "at the street line, " not the lot lines. Zoning Code §155-16A. The Township's 1968 Subdivision Plan showed that the Pool Lot had 110 feet of frontage on the right-of-way that provides the Pool Lot access to Cherry Lane. However, the Zoning Board held that this right-of-way was not a "street" within the meaning of the Zoning Ordinance but, at best, a paper street.[7]The Zoning Board held that a "street" must provide for public utilities and for vehicular traffic. An existing driveway lies within the right-of-way, on which vehicles can drive to the Pool Lot. However, trees obstruct passage in other parts of the right-of-way. Concluding that the Pool Lot did not have any frontage on a "street, " the Zoning Board sustained the Perelmans' appeal that the Pool Lot did not satisfy the dimensional requirements needed to build a house. In doing so, it observed that Jerrehian may be eligible for a variance.

         Both parties appealed to the trial court, which did not take additional evidence. The trial court affirmed the Zoning Board's decision in its entirety. It agreed with the Zoning Board that the right-of-way, on which the Pool Lot fronts, is not a street because it does not serve vehicular travel and does not contain sewers or public utilities. It also agreed with the Zoning Board that the Pool Lot was a separate lot and had not merged with 103 Cherry Lane.

         Both parties have appealed to this Court.[8] Jerrehian argues that the Zoning Board erred in two ways. First, it erred because the right-of-way on which the Pool Lot has 110 feet of frontage is a "street" and, thus, the Pool Lot meets the dimensional requirements for a buildable lot. Second, in the alternative, the trial court erred because the Pool Lot meets the minimum lot width and front yard requirements of the 1951 Zoning Code, which was in effect when the Pool Lot was created in 1959 by the Orphans' Court. For their part, the Perelmans argue that the Zoning Board erred (1) in finding that a right-of-way to the Pool Lot ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.