Posted by: Patricia Salkin | March 23, 2017

PA Appeals Court Finds Right of Way Existed to Plaintiffs’ Lot and No Merger of Lots Took Place Following Subdivision

This case involved the consolidated appeals of Aram K. Jerrehian, Jr. and of Jeffrey and Marsha Perelman, who challenge a land use order of the Court of Common Pleas of Montgomery County. 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, and that he could not build a house on the lot without a variance from the dimensional requirements for a buildable lot. The trial court affirmed the order of the Zoning Hearing Board of Lower Merion Township without taking additional evidence.


On appeal, the Perelmans first argued the Zoning Board erred in finding the right-of-way to the Pool Lot actually existed, since it was not listed in subsequent deeds that transferred property burdened by the right-of-way. In response, Jerrehian claimed the right-of-way was listed in the 1961 Lot Location Plan and in the 1968 and 1972 Subdivision Plans, which were approved by the Township. As these findings were supported by the record evidence, the court rejected the Perelmans’ assertion that a right-of-way to the Pool Lot did not exist.


The Perelmans next alleged that the Zoning Board erred in holding that the Pool Lot was a lawfully existing separate lot, since it was not created by a valid subdivision. Here, the record indicated that in 1961, the Township engineer reviewed the subdivision and approved it. Furthermore, the Township engineer examined the surveys done on the four lots created, one of which was the Pool Lot, in the estate distribution. The Township Engineer then approved the Lot Location Plan, which depicted the courses and distances of the four lots, including the Pool Lot. Accordingly, the court found that the Zoning Board did not err in concluding that the Pool Lot was a valid and lawful lot.


Lastly, the Perelmans argued that even if the Pool Lot actually existed, it merged with another lot (103 Cherry Lane). The Perelmans presented evidence that the Pool Lot (115 Cherry Lane) and 103 Cherry Lane were used as a single lot by the O’Malley family from August 2003 through January 2005, who installed a circular driveway that used the common boundary line of the two lots. The two lots were also conveyed to the O’Malleys by a single deed in 2003. Despite this, the Zoning Board found that even though the O’Malleys took title to the property by a single deed, that deed separately described each lot. Moreover, each lot had a separate tax parcel number. Additionally, the O’Malleys sold 103 Cherry Lane in 2005, and then sold the Pool Lot to Jerrehian in 2006. The court found that the O’Malley’s “use of a driveway in the easement area” did not satisfy the Perelmans’ heavy burden of proof, and no merger took place. Accordingly, the Court sustained the appeal of Jerrehian and rejected the appeal of the Perelmans.


In re Jerrehian  2017 WL 875287 (PA Cmlth 3/6/2017)

 


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