Posted by: Patricia Salkin | August 20, 2008

PA Commonwealth Court Explains Merger Doctrine and Finds No Evidence of Intent to Maintain Nonconforming Lots in Single and Separate Ownership

The Plaintiff  purchased a .3 acre lot that was part of an approved subdivision prior to a change in zoning that now requires a minimum 1-acre lot.  The Plaintiff purchased the lot in 2005 from a company that purchased sixteen lots in 2003 that had been part of the originally approved subdivision from the County in a tax foreclosure sale.  Each of the sixteen lots was transferred by a separate tax deed and was separately recorded. The original owner had held all of the lots in single ownership. The Plaintiff  was denied a permit to build on the lot because the municipality maintained that the change in zoning effected a merger of Plaintiff’s lot with two adjoining lots in spite of the fact that the size of her lot had been established in an approved subdivision plan; was separately deeded; and separately taxed.  Her variance requests were also denied. The trial court upheld the zoning and hearing board.


On appeal, the Commonwealth Court upheld the trial court, explaining that, “if two adjoining, but separately-owned, lots are rendered undersized by a zoning ordinance enactment, the two properties will not be affected by the ordinance. Each lot will continue to be a lawful, non-conforming size for purposes of the zoning ordinance. If those two lots later come under common ownership, the burden is upon the municipality to prove that the new owner intended to use the two lots as one integrated parcel. On the other hand, if the same two adjoining lots are under common ownership when a zoning ordinance is passed that renders each property undersized, then the two lots are presumed to have merged.  The burden is on the landowner to rebut the presumption.” Turning to the local zoning ordinance, the Court noted that “Section 5(2)(b) provides that lots held by separate owners on the day the Zoning Ordinance makes them undersized can continue to be used separately; Section 5(2)(c) states, on the other hand, that lots under common ownership that become undersized by the ordinance merge.” The Court pointed out that the Plaintiff’s lot is separately owned today, but it was one of sixteen lots commonly owned by the original owner in 1986, when the ordinance was passed. To prove an intention of keeping the lots separate, the court said they would not look to abstract concepts, but rather to physical evidence such as a line of trees, a fence or wall dividing the parcel, things the Plaintiff could not prove. Evidence relating to the deed and the tax history of the lot was also inadequate to prove intent of single and separate ownership.


Cottone v. Zoning and Hearing Board of Polk Township, 2008 WL 3539798 (8/15/2008 )


The opinion can be accessed at:


  1. This is interesting. Life is a merry-go-round, stay on long enough and you’ll see the same things come back around. So if lots in common ownership are preseumed merged with the enactment of a zoning ordinance that renders them undersized, it would then follow that upon subsequent zoning which renders them adequately sized again, these lots should then be unmerged by enactment of the latter zoning ordinance? I’d say this should be especially true if the same landowner has owned the lots in common and never had to take action to consolidate. Otherwise, couldn’t the first event serve as an illegal taking given the occurrence of the second event, and to require a subdivision under current SALDO to regain his original lots back would be unfair, unreasonable, and an undue hardship?

  2. Did the zoning which automatically merger lots by operation of law, was it general plan zoning. I own 3 lots which were merged illegally by using general plan zoning, the local planning agency cobbled together 3 local ordinances with no notice then merged the lots. However our County Counsel and Planning dept maintain the lots merged by operation of law when they meet the current state law passed in 1984 they violated the state law but did it anyway. But heres the kicker they had to legally notify property owners that their lots merged by certain date January 1 1986 that they merged by prior laws.If you tried to appeal and tell County that the lots did not meet state law criteria. You were told they merged in years past so in essence our lots merged in 1945 and 1951 when the adjoining lots were purchased. Our merger was orchestrated by local community association in conjunction with local planning dept to prevent developer from developing his 372 1/3 acre lots merged into 79 parcels. However board members of association who owned double or triple lots were allowed to circumvent the law. So now we have 127 lots , 119 are 1/3 acre, 4 meet 1 acres zoning and remaining 5 lots are double or triple lots not meeting the 1 acre zoning. It is the same everywhere I guess not just in California.

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