Commonwealth Court Overturns Zoning Board’s Denial Based on Merger Doctrine and Unnecessary Hardship Questions

The Pennsylvania Commonwealth Court recently issued an opinion in Craft Custom Homes v. Zoning Hearing Board of Newtown Township, 2025 Pa. Commw. Unpub. LEXIS 27 (Nov. 7 2024), in which it analyzed both the merger doctrine and the requirements for satisfying the unnecessary hardship requirement for a zoning variance request.

In the early 1950s, Mary Gaeto and her husband purchased three parcels in Newtown Square, Pennsylvania, the opinion said. These parcels, known as the Gaeto Parcels, became nonconforming lots in 1959 when Newtown Township amended its zoning ordinance to require a minimum lot size of 12,000 square feet, the opinion said.

Over the years, the ownership of the Gaeto Parcels shifted within the family. Following Mary Gaeto’s death, the executors of her estate, Joseph A. Gaeto and Nancy M. Palmerio, conveyed the parcels to themselves in 2012. Palmerio then transferred her 50% interest to Joseph A. Gaeto, the opinion said.

In 2014, Joseph A. Gaeto sold the parcels to Constance and Patrick Morrissey. Later, in 2021, Patrick Morrissey sold two of the parcels to Ray Massi and the third to another buyer, the appellee in Craft Custom Homes, the opinion said. The appellee’s parcel, located at the rear of the others, was given the address “0” Third Avenue, Newtown Square.

According to the opinion, the appellee soon thereafter filed an application for dimensional variance relief to address the non-conforming issues with regards to the construction of a single-gamily home on the parcel. Specifically, the appellee sought zoning variance relief for the 7.5-foot side yards, taking into account the proposed property development which is less than the required 15 feet and 35 feet in aggregate that is required in the R-3 Residence District, the opinion said. In addition, the appellee requested interpretations of the zoning ordinance to determine whether requested zoning variance relief was necessary for the requirements of minimum buildable lot sizes.

The Newtown Township Zoning Board then held a hearing to review the appellee’s application for the requested dimensional variance relief.

During the hearing, the appellee presented evidence through testimony from several witnesses. The appellee testified about the size and style of the proposed home, describing it as smaller but similar in style to neighboring homes and highlighted the physical features of the property, such as a chain link fence and a line of trees and shrubs that delineated it from surrounding lots, the opinion said.

A civil engineer also testified at the hearing that the property’s narrow and nonconforming dimensions created a hardship, as it could not be developed in compliance with the zoning ordinance, the opinion said.

Finally, an architect further supported the application by asserting that the proposed home was consistent with the general character of the neighborhood and that its design would not disrupt the area’s aesthetic.

The hearing also included objections from neighboring residents. One such resident provided testimony on the neighborhood’s zoning history, noting that the 1959 ordinance introduced the current minimum lot size requirements, arguing that the property had been used collectively with the other Gaeto Parcels and had not been lawfully subdivided, while also submitting a petition signed by 52 neighbors opposing the application, the opinion said.

The zoning board subsequently unanimously denied the appellee’s zoning variance requests.

The decision cited the appellee’s failure to demonstrate the existence of an unnecessary hardship required for granting the requested zoning variances, concluding that the appellee failed to provide substantial evidence that the property’s physical circumstances or conditions were unique enough to justify the requested zoning variances.

Instead, the zoning board found that the hardship was self-imposed, stemming from the appellee’s own actions and financial motivations, especially since the zoning restrictions were known to a purchaser at the time of property acquisition, the opinion said. Additionally, the zoning board concluded that the property merged with the Massi Parcels at the time of the 1959 zoning ordinance, and, therefore, the appellee did not have single and separate ownership of the property.

Following the zoning board’s denial of the requested zoning variances, the appellee appealed the zoning board’s ruling to the trial court.

Without hearing additional evidence, the trial court reversed the zoning board’s ruling and granted the requested zoning variances.

Conducting its analysis, the trial court determined that the property qualified as an existing nonconforming lot under the zoning ordinance, reasoning that the zoning ordinance’s definitions of “lot” and “single and separate ownership” did not presume merger of parcels under common ownership, as might be inferred in other zoning contexts, but instead the zoning ordinance required a more nuanced analysis, considering factors such as usage patterns and the placement of structures in relation to property lines.

After the trial court reversed the zoning board’s ruling, the appellant appealed the decision to the Commonwealth Court.

Ultimately, the Commonwealth Court affirmed the trial court’s decision which reversed the zoning board’s ruling.

The Commonwealth Court first addressed the appellant’s argument that the trial court erred in reversing the zoning board’s ruling with regards to the single and separate ownership issue because the trial court should have deferred to the zoning board’s interpretation of its own ordinance; and the property merged with the Massi parcels because the property was an integral part of the trio of parcels when owned by the Gaetos under a single deed.

This argument deals with the merger doctrine which, in zoning law, refers to the automatic merging of adjoining lots held in common ownership under certain circumstances.

However, common ownership alone does not trigger a merger under the law. Instead, the presence of a merger provision in the relevant zoning ordinance determines whether adjoining lots will merge for zoning compliance purposes.

In cases where lots held in common ownership existed before a zoning ordinance rendered the properties nonconforming, the burden of proof shifts to the party asserting that the lots remain separate. The burdened party must provide clear and unequivocal evidence of the property owner’s intent to keep the lots separate. This typically involves demonstrating an overt physical manifestation of that intent, such as distinct uses, physical barriers, or other indications that the lots are not being treated as one.

In Craft Custom Homes, the four parcels that make up the Gaeto Parcels—including the property and Massi Parcels—were under common ownership by the Gaeto family prior to the 1959 zoning amendment. This amendment rendered the individual parcels nonconforming. The zoning ordinance adopted in 1974 defined “single and separate ownership” in a way that emphasized the character of usage and the placement of structures relative to property lines.

As such, the appellee was tasked with demonstrating that the property remained separate from the Massi Parcels despite their common ownership. The zoning board’s ruling relied heavily on testimony that the property was used for personal activities such as gardening and housing a dog, suggesting that it was treated as a single lot along with the Massi Parcels.

The Commonwealth Court in Craft Custom Homes determined that under the zoning ordinance, the merger of adjoining lots depends on the “character of usage” which includes factors such as the placement of structures, accessory buildings and amenities.

As pointed out by the Commonwealth Court, the zoning ordinance defines structures as man-made objects with a stationary location, including buildings, storage tanks, and manufactured homes and accessory buildings are defined as subordinate structures used for purposes incidental to the main building.

Furthermore, in Craft Custom Homes, the Commonwealth Court noted that the zoning ordinance cites examples of sufficient uses to establish lot mergers, including a house which straddles a property line or a garage or pool on a separate adjoining lot.

In Craft Custom Homes, the trial court ruled that a garden and doghouse on the property were not sufficient to establish a merger, as they did not meet the intensity or type of usage defined by the zoning ordinance, in that these uses of the property did not resemble the more permanent structures or accessory buildings required for a merger, such as houses or garages.

The Commonwealth Court agreed, citing to Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216 (Pa. Cmwlth. 2009).

The appellant also argued that, because the property was conveyed from the Gaeto’s to the Massi’s on the same deed as the two separate parcels, it had merged. The Commonwealth Court summarily dismissed this argument as well.

The second major issue discussed in Craft Custom Homes is whether the zoning board erred in determining that there was not an unnecessary hardship requiring the granting of the dimensional variances.

Citing to Valley View Civic Association v. Zoning Hearing Board of Adjustment, 462 A.2d 637 (Pa. 1983), the Commonwealth Court reiterated that, to meet the requirements for dimensional variance relief, “the hardship must be shown to be unique or peculiar to the property as distinguished from a hardship arising from the impact of zoning regulations on an entire district.”

The zoning board determined that the appellee’s own financial and economic intentions motivated the hardship, but the trial court determined that, because the lot was non-conforming, enforcement of the Zoning Ordinance would “sterilize the land, creating the necessary hardship which will justify the granting of the variance.”

Additionally, the zoning board argued that the appellee created the hardship by knowingly purchasing the non-conforming property, but the Commonwealth Court again disagreed.

Relying upon Wilson v. Plumstead Township Zoning Heard Board, 936 A.2d 1061 (Pa. 2007), the Commonwealth Court noted, that in order to find that the appellee created its own hardship, the record would need to show that the appellee “paid an unduly high price because it assumed the anticipated variance would justify the price, or where the size and shape of the parcel was affecte