In Re: Appeals of A.K. Jerrehian, Jr. From the Decision Dated December 9, 2014 of the ZHB of The Twp. of Lower Merion
155 A.3d 674
Pa. Commw. Ct.2017Background
- Jerrehian owns an unimproved 3.8-acre parcel (the “Pool Lot”) at 115 Cherry Lane that gains access to Cherry Lane via a 50-foot right-of-way depicted on Township plans; he sought preliminary approval in 2013 to build a single-family house.
- The Township issued a favorable preliminary opinion; neighbors Jeffrey and Marsha Perelman appealed to the Zoning Hearing Board (Zoning Board), challenging the lot’s validity, conformity with dimensional requirements, and claiming merger with adjacent 103 Cherry Lane.
- The Pool Lot was created by an Orphans’ Court partition of the Hedgeley estate in 1959 and thereafter appeared on Township-approved plans (1961 Lot Location Plan, 1968 and 1972 Subdivision Plans) showing the 50-foot right-of-way and 110 feet of frontage on that right-of-way.
- Zoning Code §155-16A requires minimum lot area (45,000 sq ft) and lot width (90 ft) measured “at the street line”; the Code defines “street” to include a right-of-way that serves as means of vehicular/pedestrian travel and furnishes space for sewers/utilities.
- The Zoning Board held (1) the Pool Lot is a valid lot created by the Orphans’ Court and approved by the Township, (2) it did not merge with 103 Cherry Lane during a brief common ownership period, but (3) the right-of-way was not a “street” so the lot failed the 90-foot width requirement and cannot be built upon without a variance.
- The trial court affirmed the Zoning Board without taking new evidence; on appeal this Court reversed the Zoning Board as to the street/lot-width question but affirmed its rulings on lot validity and non-merger in part.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 50-foot right-of-way a “street” under the Zoning Code for measuring lot width? | Jerrehian: right-of-way is a street — used by vehicles/pedestrians, depicted on approved plans, can accommodate utilities; thus lot meets 90-ft frontage. | Perelmans/Township: it is only a driveway or paper street; lacks vehicular passage at parts and does not contain utilities; not a “street.” | Court: Right-of-way is a “street” — need only serve as a means of travel and furnish space for utilities; Zoning Board’s stricter reading reversed. |
| Did the Orphans’ Court partition create a valid lot (Pool Lot) notwithstanding subdivision law? | Perelmans: Orphans’ Court partition was not a valid subdivision under MPC/SALDO; Pool Lot invalid. | Jerrehian/Township: Partition predated MPC; Township later ratified via approved Lot Location and Subdivision Plans; valid lot. | Court: Pool Lot is a lawful lot created by the 1959 Orphans’ Court partition and ratified by Township approvals; Zoning Board and trial court were correct. |
| Did the Pool Lot merge with 103 Cherry Lane during common ownership by the O’Malleys (2003–2005)? | Perelmans: Common deed, combined use (driveway), and single ownership show intent to merge. | Jerrehian: Mere common ownership and temporary shared driveway do not show overt intent to integrate lots; separate descriptions and tax parcels persist. | Court: No merger — Perelmans failed to prove overt, unequivocal physical manifestation of intent to merge; Zoning Board’s finding upheld. |
| If right-of-way qualifies as a street, does the Pool Lot meet dimensional requirements under prior (1951) Zoning Code? | Jerrehian (alternative): If current Code unclear, apply 1951 Code standards in effect when lot was created, which the lot meets. | Perelmans: Current Code applies; right-of-way not a street. | Court: Resolved in Jerrehian’s favor by construing current Zoning Code definitions liberally for landowner; did not need to rely on 1951 Code. |
Key Cases Cited
- In re Puleo, 729 A.2d 654 (Pa. Cmwlth. 1999) (discusses lot merger concept under zoning)
- Smith v. Zoning Hearing Bd. of Huntingdon Borough, 734 A.2d 55 (Pa. Cmwlth. 1999) (deference to zoning board interpretations)
- Mt. Laurel Racing Ass'n v. Zoning Hearing Bd., 458 A.2d 1043 (Pa. Cmwlth. 1983) (resolving zoning doubt in favor of landowner)
- Guido v. Township of Sandy, 880 A.2d 1220 (Pa. 2005) (when subdivision methods create legally recognized lots after SALDO adoption)
- Dowgiel v. Reid, 59 A.2d 115 (Pa. 1948) (easement for private road includes reasonable utility uses)
- PARC Holdings, Inc. v. Killian, 785 A.2d 106 (Pa. Super. 2001) (utilities and improvements are reasonable uses of a street right-of-way)
- Tinicum Township v. Jones, 723 A.2d 1068 (Pa. Cmwlth. 1998) (merger doctrine depends on zoning ordinance provisions)
- Croyle v. Dellape, 832 A.2d 466 (Pa. Super. 2003) (owners may enforce removal of encroachments in unopened street easement)