Opinion
No. 945 C.D. 2014
06-05-2015
Karen Batchelder, Walker and Sheila Brown, Rosemary Espanol, Charles and Pat Hilpl, Tina Pappajohn, Claudia Makadon Sauerteig and Andrew Sauerteig, Luca and Dawn Sena, Sarah Williams, Appellants v. Philadelphia Zoning Board of Adjustment, City of Philadelphia and 513 Delancey Street, LLC
BEFORE: HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
This is the second of two related land use appeals involving adjacent city properties fronting on different streets and adjoined in the back. This appeal generally deals with the substantive issue of merger.
In particular, Objectors ask whether the Court of Common Pleas of Philadelphia County (trial court) erred in affirming a Philadelphia Zoning Board of Adjustment (ZBA) decision that dismissed Objectors' challenge to the Department of Licenses and Inspections (L&I) issuance of a zoning/use permit to 513 Delancey Street, LLC (Developer) for construction of a single-family dwelling on the property located at 516 Cypress Street (subject property). Objectors contend the property located at 513 Delancey Street, which is improved with a single family dwelling, merged with the subject property, which adjoins 513 Delancey Street immediately to the rear. As a result, Developer's proposal to build a single-family dwelling on the subject property would violate a Philadelphia Zoning Code (Zoning Code) provision that prohibits more than one principal structure on a single lot. They also assert the trial court erred in upholding the ZBA's decision where, on the permit application, Developer misrepresented that the subject property was a separate, vacant zoning lot, when, in fact, recognized uses were conducted on the property. Upon review, we affirm.
Objectors are Karen Batchelder, Walker and Sheila Brown, Rosemary Espanol, Charles and Pat Hilpl, Tina Pappajohn, Claudia Makadon Sauerteig and Andrew Sauerteig, Luca and Dawn Sena, and Sarah Williams.
I. Background
The ZBA, the fact-finder here, summarized the record before it as follows. In February 2013, Developer submitted an application to L&I for a zoning/use registration permit for construction of a three-story, single-family dwelling with cellar and rooftop deck on the subject property. The application stated that, both prior to, and at the time of the application, the subject property was a "Vacant lot." ZBA Op., 12/23/13, Finding of Fact (F.F.) No. 1. L&I issued the permit.
Shortly thereafter, Objectors appealed L&I's issuance of the permit, asserting:
a. L&I issued the [p]ermit based on a misrepresentation of the facts regarding the [subject property], including but not limited
to, a misrepresentation of the 'last previous use' of the lot and 'date last used' as noted on the [a]pplication;F.F. No. 4.
b. The [a]pplication failed to note the last previous use of the [subject property] as actually used [was] accessory parking and rear yard to 513 Delancey Street;
c. The [p]ermit will create a condition of multiple structures on the lot in violation of Title 14-401(4)(b) as the property was historically used as part of one 'lot' as defined in Title 14-203(169) as accessory parking and rear yard;
d. The [subject property] has never been legally subdivided or separated from 513 Delancey Street, and therefore, does not meet the definition of a nonconforming lot as set forth in title 14-305(7);
e. The property does not comply with the Zoning Code at Title 14-701-1 pertaining to minimum lot area. ...
The ZBA held a hearing on Objectors' appeal. According to Objectors' counsel (whose statements of fact were later corroborated by Objector Christina Pappajohn), Objectors' Exhibit 4 is a photograph that shows wrought iron fencing in front of a parking space on the subject property (next to 514 Cypress Street). Objectors' Exhibit 5 is another photograph of the subject property that shows trees, shrubbery and a pond. This photograph was taken from the rear of 513 Delancey Street. Objectors' Exhibit 6 is a photograph of the subject property from the vantage point of the wrought iron gate looking back toward 513 Delancey Street, which shows a pond, trees and shrubbery. The pond had circulating water and koi fish. The photographs were taken 15 months before the hearing. Developer's counsel stipulated to the condition of the subject property as described by Objectors' counsel.
Developer purchased the subject property as well as 513 Delancey Street in May 2012. Objectors' counsel asserted the photographs described above show the subject property was not a "vacant lot," and the statements made in the application misrepresented that fact, requiring revocation of the permit. F.F. No. 12. He also stated L&I was not aware of the condition of the subject property until late 2012 or early 2013 when it denied Developer's request for a variance for a garage as part of the proposed construction of the single-family dwelling on the subject property. Nevertheless, Objectors' counsel acknowledged that the Philadelphia Office of Property Assessment (OPA) described the subject property as a vacant lot.
Objectors' counsel further asserted Developer constructed a brick wall behind the home at 513 Delancey Street to create the "illusion that there were two lots," i.e., the subject property and 513 Delancey Street. ZBA Hearing, 6/19/13, Notes of Testimony (N.T.) at 8. Specifically, regarding the history of the two properties being used together as one "zoning lot," Objectors' counsel stated:
There were not two lots. There were two tax parcels. Now, I don't doubt that at some point in time on [the subject property] there was a structure, but all I can tell you, and I can prove it, that from 1965, and Mrs. [Pappajohn] has lived there since 1965, there has been no structure there [on the subject property] and it has been used as the driveway -- first as a driveway by Mr. Tonkin, who owned 513 Delancey, and [the subject property] at that point was in the hands of the [Philadelphia Redevelopment Authority (RDA)]. The RDA had condemned it in the early [19]60s, along with 518 Cypress, 520 Cypress, 522 Cypress. Because the area was blighted, they wanted -- the RDA wanted to create light, wanted to create air, wanted to relieve density. Mr. Tonkin, who then owned 513 Delancey, bought -- purchased from the RDA, for a very modest amount of money, [the subject property]. He was already using it as his
driveway. He purchased it on the condition that he make it a driveway -- a walkway, I'm sorry, parking and a garden for 513. That condition expired in 1986. Dr. [C]undy purchased 513-516 from Mr. Tonkin in 1973. He is the one -- Dr. [C]undy is the one that put in the pond, the circulating water, I think the trees. Really, and I'm not making a pun here, spruced it up. There was a maple tree there. Mrs. [Pappajohn] can identify the trees, actually, because it's all part and parcel -- the four properties in a row are part and parcel of the Society Hill Garden Walkway tour and have been -- Society Hill Walkway tour and have been for years.F.F. No. 13 (citing N.T. at 8, 9). According to Objectors' counsel, this case is all about the subject property and 513 Delancey Street "being one zoning property by operation of law and you can't destroy it." N.T. at 10. Objectors' counsel argued the doctrine of merger applies; as a result, the two properties merged into one.
In response, the City's counsel argued the doctrine of merger did not apply, and the subject property and 513 Delancey Street were always two separate lots. He asserted the cases cited by Objectors' counsel "are not Philadelphia cases and don't relate to the ... Zoning Code. They do relate to various townships, as you heard, West Goshen. There's another one he cited in Abington, which have their own zoning codes and talk about parcels, and single use, and things of that nature that the ... Zoning Code does not." N.T. at 15, 16. The City's counsel then attempted to refocus the issues to be considered by the ZBA, as follows: (1) did the application to erect a single-family dwelling satisfy zoning requirements; and (2) did L&I follow the proper procedures under the City Charter?
On the latter issue, the City's counsel argued the City Charter required L&I in its review of the application to rely on the Law Department for legal issues. Here, the City's counsel stated the Law Department was asked to and did consider Objectors' argument that the two lots merged by operation of law. The Law Department concluded the two lots did not merge and advised L&I accordingly. The City's counsel also stated that a deed restriction from the RDA, which required the two properties to be used together, expired in 1986 and was no longer legally binding.
As to the issue of whether the subject property was a vacant lot, the City's counsel argued it was appropriate for L&I to consider it a vacant lot because there were no structures on it. Specifically, the City's counsel argued that "even though it may, in fact, be used and known to be used for parking doesn't mean its [no] longer a vacant lot. And in that context, L&I properly reviewed it, and as I said, and as the Law Department advised them in terms of this, I guess, the allegation that it must be treated automatically as a merged property into one lot, we have concluded that is not the case, that doesn't apply here, and therefore, we believe L&I's issuance of the [p]ermit was correct." N.T. at 18.
The City's counsel stated the subject property and 513 Delancey Street were always separate lots. They were never one lot that was subdivided into two lots. N.T. at 21. In reviewing the history of the properties surrounding the subject property, one of the ZBA members indicated "it looks like somebody had to go to the counter at L&I to merge two lots." N.T. at 31. Jeanne Klinger, Code Administrator for L&I, confirmed that a landowner must file an application with L&I and go through a zoning process before two lots can be consolidated into one lot. N.T. at 45-46.
The first witness to testify in opposition to the issuance of the permit was Pappajohn, who resides at 515 Delancey Street. Pappajohn agreed that Objectors' counsel's factual statements were accurate. She stated that since 1965 when she moved into her home, the subject property was used for parking and as a garden area.
Objector Andrew Sauerteig, who resides at 514 Cypress Street, testified that when he and his wife purchased their home two years ago, the subject property was used for off-street parking. If a home were built on the subject property, he and his wife would lose the light that currently comes in because of the open space and they would have no privacy.
Objector Patricia Hilpl, who resides at 511 Delancey Street, testified she was also concerned about the loss of light and air. Similarly, Cari Akula, who resides at 523 Cypress Street, testified against the issuance of the permit based on the loss of light and air.
For her part, Klinger, L&I's Code Administrator, testified that, with regard to the previous use of the subject property for off-street parking for 513 Delancey Street, such a use was permitted as of right under the former Zoning Code. Specifically, the former Zoning Code stated: "Nothing in this title shall prohibit the parking of motor vehicles as a main or principal use of a lot situated in a residential district when, number one, the lot is intended to be used for parking solely by the adjacent property owner and will be used solely and exclusively for private parking of passenger motor vehicles belonging to the resident of the adjacent property." N.T. at 43. In other words, the former Zoning Code supported the fact that, although the subject property was a separate lot from 513 Delancey Street, it was lawful to use the subject property as off-street parking for 513 Delancey Street. Thus, L&I considered the subject property as a separate lot from 513 Delancey Street when it reviewed the application. L&I also considered the subject property as a separate lot from 513 Delancey Street because there were separate OPA accounts for the subject property and 513 Delancey Street and there were "two separate deeded descriptions." F.F. No. 22; N.T. at 44.
Although the size of the subject property does not comply with current Zoning Code requirements, Klinger testified the subject property was a lawful, nonconforming lot, and the proposed development could be approved so long as it complied with certain provisions of the current Zoning Code, which it did. F.F. No. 23.
Michael Murray, Developer's principal and the owner of both the subject property and 513 Delancey Street, testified that prior to purchasing the two properties, he examined OPA records and confirmed the subject property and 513 Delancey Street were two separate parcels. In the deed to Developer, the subject property and 513 Delancey Street each had their own separate legal description. In February 2013, Developer appeared before the ZBA seeking a variance to include a garage as part of the proposed construction of a single-family home on the subject property. The ZBA denied the request. As a result, Murray asked his architect to prepare plans for construction of a single-family home without a garage, which would be permitted as of right. As of the time of the application, Murray believed the subject property was a "vacant lot" because it had no structures on it. F.F. No. 24; N.T. at 52.
Based on the evidence and argument presented, the ZBA made the following conclusions of law. Objectors claimed L&I erred in issuing the permit as a matter of right for construction of a single-family home on the subject property. Specifically, they argued: (1) the statement on the application that the subject property was a vacant lot was a misrepresentation of a material fact; and, (2) the issuance of the permit created a condition of multiple structures on one lot because the subject property merged into 513 Delancey Street and was one "zoning lot" that was never subdivided into a separate lot. ZBA Op., Concl. of Law No. 1. Thus, the ZBA stated, the issues before it were whether: (1) the application contained a misrepresentation as to the prior use of the subject property as a "vacant lot"; (2) L&I followed the proper procedures in reviewing the application, including seeking legal advice from the City's Law Department; and, (3) L&I properly issued the permit. Id.
The ZBA noted there is a presumption that municipal officers perform their duties properly and take the steps necessary to give validity to their official acts. Mamallis v. Borough of Millbourne, 164 A.2d 209 (Pa. 1960); Appeal of Gilbert, 383 A.2d 556 (Pa. Cmwlth. 1978). This presumption of official propriety is conclusive if not rebutted by affirmative evidence of irregularity. Mamallis.
The ZBA accepted Klinger's testimony as credible and persuasive that not only did L&I have a process in place to review the permit application, but the application at issue here complied with applicable requirements. In particular, the ZBA determined: (1) the subject property was a separate lot from 513 Delancey Street; (2) the prior use of the subject property as off-street parking for 513 Delancey Street was a permitted use under the former Zoning Code; (3) the subject property was an existing, legally nonconforming lot; (4) the application and the plans submitted with it satisfied the requirements of the current Zoning Code for nonconforming lots to permit construction of a single-family home on the subject property; and, (5) L&I followed the proper procedure in reviewing the application by obtaining legal advice from the Law Department and following its advice on the issue of merger. Concl. of Law No. 5.
The ZBA further determined Developer did not misrepresent a material fact by stating in the application that the subject property was a "vacant lot" because there were no structures on the subject property. Concl. of Law No. 6.
As to Objectors' argument regarding merger, the ZBA determined the subject property did not merge into and become one with 513 Delancey Street. Concl. of Law No. 7. Thus, L&I properly treated the subject property as a separate lot in reviewing the application and in issuing the permit. Id. The ZBA determined Objectors failed to present sufficient affirmative evidence of irregularity by L&I and did not meet their burden of proof. As such, the ZBA determined L&I performed its duties properly and took the steps necessary to issue a valid permit. Objectors' claim of error on the part of L&I was therefore unfounded. Thus, the ZBA denied Objectors' appeal by a 3-1 vote. Objectors appealed to the trial court.
Without taking additional evidence, the trial court denied Objectors' appeal and affirmed the ZBA. In a subsequently issued opinion, the trial court stated this Court should deny Objectors' appeal because: (1) there is substantial evidence that the subject property and 513 Delancey Street did not merge into one lot by mere use and operation; and, (2) there is substantial evidence that Developer did not mislead L&I by describing the subject property as a vacant lot. More particularly, the trial court explained:
As stated by the Commonwealth Court, '[i]t is well established that mere common ownership of [two] adjoining lots does not automatically establish a physical merger of those lots for the purpose of determining whether [they] comply with ... zoning requirements.' Tinicum Twp. v. Jones, 723 A.2d 1068, 1071 [(Pa. Cmw1th. 1998)]. Such merger is not automatically presumed simply due to uniformity of lot ownership, or the fact that one lot is maintained and/or used by the occupant of the other. Daley v. Zoning Hearing Bd., 770 A.2d 815, 819 [(Pa. Cmwlth. 2001)] (citing Tinicum, 723 A.2d at 1072); see, e.g., Tinicum 723 A.2d at 1072 (use by landowners family of a lot as a playground and picnic area did not cause it to merge with adjacent lot resided upon, and owned by, same individuals); Appeal of Gregor, 627 A.2d 308, 309-10 [(Pa. Cmwlth. 1993)] (use of a lot as a front lawn did not cause it to merge with adjacent lot resided upon, and owned by, same individuals); rather, there must be 'some overt, unequivocal physical manifestation of the owner's intent to integrate the adjoining lots.' Tinicum, 723 A.2d at 1072 (citing Lebeduik v. Bethlehem Twp. Zoning Hearing Bd., 596 A.2d 302 [(Pa. Cmwlth. 1991)]; see, e.g. Lebeduik, 596 A.2d at 305 (landowners' 'capping of [a] sewer lateral, removal of [a] hedge separating [adjacent] properties and statement that they would not develop' one of the properties found to have resulted in their merger); Price v. Bensalem Twp. Zoning Hearing Bd., 569 A.2d 1030, 1034 [(Pa. Cmwlth. 1990)] (paving over contiguous portions of two properties held in common ownership found to have resulted in merger). In addition, the burden of proving this intent is placed upon the party asserting that such a merger has occurred. Appeal of Gregor, 627 A.2d at 311.
In the instant matter, there is substantial evidence to support the ZBA's finding that 513 Delancey and [the subject property] had not merged, for zoning purposes, into a single lot, evidence which [Objectors] failed to rebut with clear and unambiguous proof to the contrary. ... [T]he RDA sold [the subject property] in 1966 to Bernard and Seena Tonkin, who also owned 513 Delancey at that time, with the understanding that [the subject property] could only be used for certain, limited purposes. Certified Record, Part 1 at 45-46, 116-19; Certified Record, Part 2 at 1-17. However, this restriction was limited in duration and did not bar the Tonkins from reselling [the subject property] on its own, meaning that the 1966 sale agreement did not create a permanent impediment to the development of [the subject property]. Certified Record, Part 2 at 3-5. In addition, though the Cundys made improvements to [the subject property], by adding trees and a small koi pond to the property, id. at 18-21, there was a distinct absence of evidence that they (or any of the other post-RDA owners) intended for [the subject property] to be anything more than a separate lot, one which could be used for the enjoyment of 513 Delancey's occupants. Instead, the evidence submitted to the ZBA suggested that the relationship between 513 Delancey and [the subject property] was akin to that of the at-issue properties in [Tinicum] and [Gregor], in that, though the properties had common ownership, there was no proof that the owners had taken affirmative, purposeful steps to extinguish their status as legally-distinct plots of land. See, e.g., Certified Record, Part 4 at 7-10 ([OPA] records); see also Certified Record, Part 1 at 45, 58 (Arthur Makadon, [Objectors'] then-attorney, stating that 513 Delancey and [the subject property] were 'two tax parcels'; id. at 58 (Andrew Ross, City's attorney, stating that the properties have 'always been and remain[] two lots.'); id. at 84-87 (Michael Murray, principal and owner of Delancey Street, testifying that he purchased these properties with the understanding that they were two separate tax parcels). Indeed, even [Objectors'] pictures show that [the subject property] contains a garden of sorts, which runs inward from a parking space abutting Cypress Street and appears to terminate at the northern edge of 513 Delancey, rather than overlapping both properties. See Certified Record, Part 3 at 3-9; Certified Record, Part 4 at 1. Moreover, Ms. Klinger's testimony established that the substance of the [Zoning] Code reflects a local policy decision that any presumption of automatic merger is strongly
disfavored, where such merger is alleged to have occurred in the absence of formal recognition by L&I. Certified Record, Part l at 79-83; see also Phila. Code § 14-304(6) (Zoning Code provision governing lot adjustments). Accordingly, as there was substantial evidence that 513 Delancey and [the subject property] had not merged, this Court did not err in affirming the ZBA's denial of [Objectors'] appeal.Tr. Ct., Slip Op., 7/15/14, at 5-7 (emphasis in original) (footnotes omitted).
The trial court also determined substantial evidence supported the ZBA's finding that Developer did not mislead L&I by describing the former use of the subject property as a "vacant lot." Id. at 7-8. Objectors' appeal is now before us for disposition.
II. Issues
On appeal, Objectors contend Developer's proposal to build a single-family dwelling on the subject property violates a Zoning Code provision that prohibits more than one principal structure on a single lot because the lot, 513 Delancey Street, merged by operation of law with the subject property in light of: (1) a prior owner's agreement with the RDA; (2) the prior owners' use of the properties; and (3) the prior owners' holding the parcels out to the community as a single zoning lot. Additionally, Objectors argue the trial court erred in upholding the ZBA's denial of an appeal against the issuance of the permit where Developer misrepresented that the subject property was a separate, vacant zoning lot, when, in fact, recognized uses were conducted on the property.
Because the parties presented no additional evidence after the ZBA's decision, our review is limited to determining whether the ZBA committed an abuse of discretion or an error of law. Soc'y Hill Civic Ass'n v. Phila. Zoning Bd. of Adjustment, 42 A.3d 1178 (Pa. Cmwlth. 2012).
III. Discussion
A. Merger
1. Contentions
Objectors argue this appeal stems from the ZBA's denial of Objectors' appeal of L&I's issuance of a zoning and use permit for construction of a single-family home on the subject property. Because the subject property long ago merged with the adjacent 513 Delancey Street parcel, Objectors assert, the permit will result in multiple structures on a residential lot, a condition not permitted in the zoning district. See Section 14-401(4)(b) of the Zoning Code. Objectors contend that, in denying their appeal, the ZBA erred when it rejected, without authority, the applicability of the doctrine of merger in Philadelphia.
Alternatively, Objectors argue, in the event the ZBA premised its decision on the doctrine of merger, the ZBA's finding of separate zoning lots is not supported by substantial evidence. Specifically, Objectors maintain the ZBA ignored the RDA Agreement, which required the owners to use the subject property strictly for parking and garden uses solely as accessory to the Delancey Parcel, and the historic use of the subject property together with the Delancey Parcel.
According to Objectors, through application of the doctrine of merger, the two undersized lots—the subject property and the Delancey Parcel—merged into a single zoning lot. Objectors assert that Developer sought a zoning permit to allow construction of an additional dwelling on the merged parcel and described the subject property as a vacant and separate zoning lot. Based on those representations and the opinion of the Law Department, L&I issued the zoning permit. Because the parcels merged into a single zoning lot, Objectors claim the issuance of a permit for another house resulted in two principal dwellings on a single zoning lot in violation of the Zoning Code. Thus, Objectors assert, L&I erred, and this Court should order revocation of the permit.
a. Doctrine of Merger in Pennsylvania Zoning Law
Objectors maintain Pennsylvania courts recognize that two lots, nonconforming as to lot area, may be merged into a single zoning lot by the manner in which a common landowner uses the properties. They assert that when a landowner acquires two adjoining lots after passage of a zoning ordinance that renders one or both of the lots nonconforming, and the landowner uses both lots in such a manner as to integrate them into one tract, the lots merge for zoning purposes. Daley. Objectors contend the merger doctrine applies equally to Philadelphia as it does throughout the Commonwealth as merger does not rest on interpretation of a specific zoning code. See In re Appeal of Moyer, 978 A.2d 405, 409 (Pa. Cmwlth. 2009) (referring to the "principles regarding merger in this Commonwealth") (citing Cottone v. Zoning Hearing Bd. of Polk Twp., 954 A.2d 1271, 1276 (Pa. Cmwlth. 2008) (en banc)).
Thus, Objectors argue, in Philadelphia, as in the rest of the Commonwealth, nonconforming lots merge where merger is the intent of the landowner. Objectors maintain that intent is proven not by subjective intent, but by some unequivocal physical manifestation clearly evidencing the landowner's intent to use the lots as a single property. Jacquelin v. Zoning Hearing Bd. of Hatboro Borough, 558 A.2d 189 (Pa. Cmwlth. 1989). Once such intent is shown, Objectors assert, merger is effective and binding on all future landowners. Price. Here, Objectors urge, the record compels a finding that the parcels merged before Developer purchased the property.
b. RDA Agreement
Objectors contend neither the City nor Developer dispute the fact that the Tonkins entered into and complied with a binding agreement with the RDA to acquire the subject property for the specific use as a parking space and garden accessory to their primary Delancey Street residence. Objectors assert the executed contract between the RDA and the Tonkins is the physical manifestation of intent that the merger analysis requires. Here, they argue, the contract and the actions taken in compliance with the promises made fully show the Tonkins' intent to use the parcels together. On this basis alone, Objectors claim, the parcels merged.
c. Maintenance/Use as Integrated Unit
Objectors assert this Court succinctly distilled the test for merger as follows:
While there is little appellate authority describing the nature of such proof, trial courts have found the lack of single and separate ownership in cases where lots have been fenced together as one integrated unit and 'maintained as a unified parcel of residential property,' Burnside v. Willistown Township, 12 Chester 282 (1964); where a lot has been used as 'an appurtenance' to the residence as if the same were on an integrated tract of land, Zoning Appeal of Killhour & Capriolo, 10 Chester 153 (1961); and where lots were incorporated into one larger building lot which was utilized for the purpose of erecting a single family dwelling, Yusem v. Lower Merion Township, 84 Montg. 104 (1964).W. Goshen Twp. v. Crater, 538 A.2d 952, 955 (Pa. Cmwlth. 1988).
Here, Objectors contend the Tonkins fenced the once-separate parcels in as a single unit. They assert that a wrought iron gate bounded the property on Cypress Street, and masonry walls on the east and west boundaries extended from Cypress Street and attached to the Delancey Street dwelling. Objectors argue the Cundys maintained the property that way even after the RDA Agreement expired, continuing to improve accessory uses on the subject property. They further assert the Tonkins and Cundys also maintained a brick and then cobblestone hardscape and landscaping that extended across the former common boundary of both parcels. Objectors contend this consistent use over almost 50 years merged the parcels into one zoning lot. Price.
Objectors further maintain that, although nonconforming uses enjoy substantial protection, the law of zoning still disfavors nonconformities and favors bringing properties into compliance with governing regulations. The Zoning Code, a product of comprehensive planning, is intended to protect the desirable characteristics of Philadelphia's neighborhoods. The Zoning Code's requirement that a single-family home be built on, at a minimum, a 1,440 square foot lot shows Developer's project, built on a substandard lot, is contrary to good land planning and public welfare. Section 14-701-1 of the Zoning Code.
Relying on Philadelphia's zoning framework, Objectors moved into the neighborhood and invested in their properties, transforming a blighted neighborhood into one of the City's most desirable. Recently, the Supreme Court recognized Objectors' expectations are worthy of protection and must be defended from incompatible development. See Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013). For more than 40 years, the landowners held the parcels out as one property devoted to a single use. The result was merger.
d. ZBA's Determinations
Objectors further argue that without a clear explanation of the basis of its conclusion, the ZBA determined the subject property and 513 Delancey Street were separate lots. Objectors assert the only record evidence favorable to the ZBA centers on municipal treatment of the parcels. Objectors point out that Developer claimed, and the ZBA noted, public records from OPA treated the parcels separately for tax purposes. However, Objectors argue, this Court holds that assigning separate tax parcel numbers and taxing parcels separately is irrelevant to the question of merger as municipal taxation is not a physical manifestation of an owner's intent to keep lots separate. Jacquelin; Moyer; Alpine, Inc. v. Abington Twp. Zoning Hearing Bd., 654 A.2d 186 (Pa. Cmwlth. 1995).
Objectors further note the ZBA apparently relied on Klinger's explanation that parking on the subject property could have been a lawful use, concluding her opinion supported a finding of separate lots. Objectors acknowledge that a provision of the former Zoning Code allowed parking as a principal use in a residential district if both properties were owned by the same owner and the parking was for the exclusive use of vehicles owned by a resident of an adjacent parcel. However, they assert, the use of every lot, except lots used for single-family homes or places of worship, requires a use registration permit. Objectors argue that, because the subject property was not used as a single-family home or a place of worship, the use for parking as a principal use required a use registration permit, and the City admitted that neither the Tonkins nor the Cundys applied for or received such a permit. If, on the other hand, the parcels merged, the Zoning Code required no use registration permit because of the exception for single-family residences. Objectors maintain Developer's predecessors-in-interest never secured a permit to legalize a principal parking use, and, therefore, Klinger's explanation does not support a claim of separate parcels.
Objectors also acknowledge Klinger's testimony regarding the Zoning Code's formal reverse subdivision procedure for creating one lot from two. Based on this testimony, Objectors assert, the trial court inferred a local policy that any presumption of automatic merger is strongly disfavored, where such merger is alleged to have occurred in the absence of formal recognition by L&I. Objectors argue there is little basis for the inference. First, there is no claim of automatic merger here because, Objectors contend, their appeal is solidly founded on the physical manifestations of the prior landowners' intent to merge the parcels. Additionally, the presence in a zoning code of a mechanism for formally combining lots does not, by itself, rule out application the doctrine of merger. Lastly, Objectors maintain, the Zoning Code defines a "lot" as "a parcel of land consisting of a horizontal plane bounded by vertical planes that comprise its front, side, and rear lot lines, and that is intended or designed to be used, developed, or built upon as a unit." Section 14-203(169) of the Zoning Code (emphasis added). Objectors argue that definition does not depend on a parcel's metes and bounds description or its tax identification number; rather, the critical part of the definition is intent. Here, Objectors contend, the previous landowners intended to develop and use the parcels together.
2. Analysis
Under the doctrine of merger of estates in land, a lesser estate is merged into a greater estate whenever the two estates meet in the same person. Tinicum Twp. The doctrine of merger of estates is, however, inapplicable to zoning law where the term "merger" is used to describe the effect of a zoning ordinance on adjoining lots held in common ownership. Id.; W. Goshen Twp.
Mere common ownership of the adjoining lots does not automatically establish a physical merger of those lots for the purpose of determining whether the lots comply with the zoning requirements. Tinicum Twp. "This Court reasoned: if the first tract were already developed and the owner acquired the adjacent lot from another as an investment, then there seems little point in developing a rule which would say this lot may be purchased and developed by any person except the owner of the neighboring land." Id. at 1071 (citations and quotations omitted). Therefore, unless it is shown that an owner of the two adjoining lots that were undersized by a subsequently enacted zoning requirement did not intend to keep the lots separate and distinct, they may be developed as separate lots. Id. "The burden is placed upon the party who asserts a physical merger to establish the landowner's intent to integrate the adjoining lots into one large parcel." Id. at 1071-72 (quoting Gregor, 627 A.2d at 31).
To establish a physical merger, evidence of some overt, unequivocal physical manifestation of an owner's intent to integrate the adjoining lots must exist. Id. Where a landowner uses or treats both lots in such a manner so as to integrate both lots into one tract, then the lots do merge for purposes of zoning. Twp. of Middletown v. Middletown Twp. Zoning Hearing Bd., 548 A.2d 1297 (Pa. Cmwlth. 1988). Further,
[i]n cases where a finding of merger was upheld, there was evidence to show affirmative action taken to change the separate and distinct character of the two lots. For example, in [Alpine], fencing two lots and maintaining them as one unit for over fifty years was sufficient to support finding of merger. Blacktopping adjoining lots is sufficient to support a finding of merger. [Price]. Removing a hedge separating the parcels, capping the sewer lateral to one of the parcels, and, stating that
the two parcels would be treated as one property, will also result in a finding of merger. [Lebeduik].Black v. Zoning Hearing Bd. of Twp. of Cheltenham, (Pa. Cmwlth., No. 1732 C.D. 2007, filed July 16, 2008) (unreported) 2008 WL 9398993, at *6.
Pursuant to Commonwealth Court Internal Operating Procedure No. 414, 210 Pa. Code §69.414, an unreported panel decision of this Court, issued after January 15, 2008, may be cited for its persuasive value.
Here, the parties agree there are no cases that specifically address the issue of whether the doctrine of merger applies in Philadelphia for zoning purposes. Our research confirms this point.
The parties disagree on the applicability of the merger doctrine based on the language of the Zoning Code. To that end, Developer maintains this Court holds, to trigger the merger doctrine, the zoning ordinance at issue must contain a special exception provision for a landowner to build on adjoining, nonconforming lots that are held in "single and separate ownership" (or a similar requirement) at a specific point in time. See Dudlik v. U. Moreland Twp. Zoning Hearing Bd., 840 A.2d 1048 (Pa. Cmwlth. 2004); Alpine; Lebeduik; Price; Twp. of Middletown; West Goshen Twp.; see also Moyer; Cottone; Jacquelin; Lauman v. Salford Twp. Zoning Hearing Bd. (Pa. Cmwlth., No. 331 C.D. 2008, filed Dec. 17, 2008) (unreported), 2008 WL 9405041; Black. Developer argues neither the former Zoning Code nor the current Zoning Code contain such a provision.
Similarly, the City asserts, in cases where the merger doctrine was deemed applicable, the zoning ordinances included a specific provision allowing for a structure to be built on adjoining nonconforming lots held in "single and separate ownership." Here, the City argues, the Zoning Code contains no such provision.
According to the City, requests for lot adjustments to merge existing lots proceed before the City Planning Commission (Commission). Section 14-304(6), (7) of the Zoning Code. Further, the Zoning Code addresses nonconforming lots and authorizes the use of and construction upon such lots where such use or construction complies with the regulations in the applicable zoning district. See Section 14-305(7)(a) of the Zoning Code. In fact, that provision specifically extends to the use or construction of "a group of adjacent nonconforming lots." Id. Thus, the City asserts, Philadelphia does not consider lots merged by operation of law, but rather only through Commission approval, while alternatively permitting owners to build on nonconforming lots that meet the criteria in the applicable zoning district.
In any event, Developer and the City maintain, even assuming that the merger doctrine applies to adjoining, nonconforming lots situated in Philadelphia, there was substantial evidence from which the ZBA could reasonably conclude the subject property did not merge with 513 Delancey Street. Specifically, the facts presented here do not support a finding of merger in light of the fact that no prior owner of the two properties manifested intent or took action to maintain the properties as a single lot.
In Black, an unreported decision, the zoning ordinance at issue did not contain a provision that allowed a landowner to build on adjoining nonconforming lots that were held in "single and separate ownership." There, we stated, "[a]ssuming arguendo that the concept of merger applies, the Court agrees that the evidence was insufficient to meet [a]ppellants' burden to prove a merger of the lots. Under [Tinicum Township], the party asserting a physical merger has the burden of proof." Id., slip op. at 6, 2008 WL 9398993 at *2 (emphasis added). In that case, we affirmed on the opinion of the Honorable Thomas M. Del Ricci of the Montgomery County Court of Common Pleas, who stated: "Where the applicable zoning ordinance contains no language regarding single and separate ownership, such as the [o]rdinance herein, then the doctrine of merger does not automatically apply and the burden of proof is on the party asserting that a merger occurred." Id., Tr. Ct., Slip Op. 12/11/07, at 7, 2008 WL 9398993 at *6 (emphasis added).
Thus, assuming the merger doctrine is applicable in cases arising under the Zoning Code, Objectors bore the burden of proving merger occurred here. Tinicum Twp.; Black; see also Gregor. The ZBA determined Objectors' evidence was insufficient to meet this burden. We discern no error in this determination.
As fact-finder, the ZBA is the sole judge of the credibility and weight of the evidence presented. Tri-County Landfill, Inc. v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488 (Pa. Cmwlth.), appeal denied, 101 A.3d 788 (Pa. 2014). As a result, the ZBA is free to reject even uncontradicted evidence that it finds lacking in credibility. Id. Our review of the ZBA's factual findings is limited to determining whether the ZBA's findings of fact are supported by substantial evidence. Id.
Substantial evidence is such relevant evidence as a reasonable person might accept as adequate to support a conclusion. Oasis v. Zoning Hearing Bd. of S. Annville Twp., 94 A.3d 457 (Pa. Cmwlth. 2014). When performing a substantial evidence analysis, courts must view the evidence in the light most favorable to the party who prevailed before the fact-finder. In re McGlynn, 974 A.2d 525 (Pa. Cmwlth. 2009). It is irrelevant whether the record contains evidence to support findings other than those made by the fact finder; the critical inquiry is whether there is evidence to support the findings actually made. Keslosky v. Old Forge Civil Service Comm'n, 73 A.3d 665 (Pa. Cmwlth. 2013). If there is, an appellate court may not disturb the findings. Id.
In support of their argument that the subject property merged with 513 Delancey Street, Objectors first rely on the RDA Agreement. However, our review of the RDA Agreement, see Reproduced Record (R.R.) at 35a-55a, reveals that it did not specifically require the owners (or their successors) to use the two parcels as a single lot. Pursuant to the RDA Agreement, the RDA agreed to convey the subject property to the Tonkins on various conditions—namely, that the Tonkins (and any successors-in-interest) could not use the subject property for any purposes other than garden and parking use until 1985. See R.R. at 38a, 40a, 41a, 43a. Further, although the RDA Agreement prohibited the owners (or their successors-in-interest) from selling the subject property prior to completion of its redevelopment, R.R. at 39a, the RDA Agreement does not state that, in the event that the owners sold the subject property, that the owners were required to sell the subject property and 513 Delancey Street together, as a unified property. See Tr. Ct., Slip Op. at 6. Nor did it "create a permanent impediment to the development of the [subject property]." Id. (record citation omitted). In short, the RDA Agreement speaks to the use of the subject property for parking and garden uses until 1985, but it does not express any clear intent that the owners or their successors use the subject property and 513 Delancey Street as one lot.
The RDA Agreement also required the Tonkins to implement specific plans to build a gate and parking space facing Cypress Street, add stucco treatment to existing brick walls on the east and west boundaries, raise them to a height of six feet, plant landscaping elements, and add flagstone and brick elements to create a garden between the parking area and house, and build a low fence separating the parking space and garden. See Reproduced Record at 51a-54a.
Objectors further contend the subject property and 513 Delancey Street were maintained and used as an integrated unit. However, as the trial court stated, review of the record reveals "a distinct absence of evidence that [the owners of the subject property] intended for [the subject property] to be anything more than a separate lot, one which could be used for the enjoyment of 513 Delancey's occupants." Id.
As noted above, various Objectors testified briefly at the ZBA hearing, including Christina Pappajohn. Pappajohn stated that, when she moved to 513 Cypress Street over 45 years ago, the Tonkins used the subject property as a parking area. N.T. at 36. Pappajohn also stated, after the Cundys acquired the property, they continued to use the subject property as a parking area and created a garden. Id. Neither Pappajohn nor any other witness identified any overt, unequivocal physical manifestation of the owners' intent to integrate the subject property and 513 Delancey Street, thereby extinguishing the status of the parcels as two legally-distinct lots. Rather, the remaining testimony offered by Objectors focused on concerns over the loss of open space if a single family home were built on the subject property. Moreover, the ZBA did not credit the testimony of Pappajohn or any other Objector.
Objectors also presented photographs, claiming they substantiated their contention that the prior owners intended to use the subject property and 513 Delancey Street as a single lot. However, the trial court opined that those photographs show the subject property contains a garden that runs inward from a parking space abutting Cypress Street and appears to terminate at the edge of 513 Delancey Street, rather than overlapping across both properties. See Tr. Ct., Slip Op. at 7; R.R. at 106a, 108a. In a footnote, Objectors dispute this determination. However, regardless of the trial court's characterization as to what is depicted in the photographs, our review of the photographs reveals they do not clearly support Objectors' assertions that the owners intended to integrate the subject property and 513 Delancey Street for use as a single lot. Indeed, on that point, the photographs are, at best, inconclusive. Thus, the photographs are insufficient to satisfy Objectors' burden of proving that the subject property merged with 513 Delancey Street.
Moreover, the ZBA expressly credited the testimony of Klinger, L&I's Code Administrator, stating (with emphasis added):
The [ZBA] accepts as credible and persuasive the testimony of L&I Code Administrator Jeanne Klinger that not only did L&I have a process in place to review the [a]pplication for the [p]ermit, but that the [a]pplication at issue in this [a]ppeal complied with those requirements. In particular, the [ZBA] finds that: (i) the [s]ubiect [p]roperty was a separate lot from 513 Delancey Street; (ii) the prior use of the [s]ubiect [p]roperty as off-street parking for 513 Delancey Street was a permitted use under the prior Zoning Code; (iii) the [s]ubject [p]roperty was an existing legally nonconforming lot; (iv) the [a]pplication and the plans submitted therewith satisfied the requirements of the current Zoning Code for nonconforming lots to permit the erection of a single family dwelling on the [s]ubject [p]roperty; and (v) L&I followed the proper procedure in reviewing the [a]pplication by obtaining legal advice from the Law Department and following its advice on the issue of merger.Concl. of Law No. 5. No error is apparent in this determination.
To that end, Klinger explained the former Zoning Code permitted the parking of motor vehicles as a principal use of a lot located in a residential district when "the lot is intended to be used for parking ... solely by the adjacent property owner and will be used solely and exclusively for private parking of passenger motor vehicles belonging to the resident of the adjacent property." N.T. at 43 (quoting Section 14-1402(8)(b) of the former Zoning Code, titled "Parking as a Principal Use."). Klinger's testimony thus indicates that the Tonkins' and Cundys' use of the subject property for parking for 513 Delancey Street was expressly permitted by the former Zoning Code as a principal use of the subject property.
Further, contrary to Objectors' assertions, counsel for the City did not clearly admit that neither the Tonkins nor the Cundys applied for or received a use registration permit for the parking use. See N.T. at 29.
More importantly, Klinger's testimony indicates that under the former Zoning Code, the subject property and 513 Delancey Street were viewed as two separate lots. Id. Thus, Klinger's explanation of the former Zoning Code confirms that the subject property and 513 Delancey Street were treated as two distinct lots for zoning purposes. While Objectors' brief takes issue with Klinger's testimony regarding parking as a prior, principal use of the subject property on the ground Developer did not produce a required use registration permit for a parking use, Objectors did not challenge Klinger's testimony on this basis before the ZBA. Id. Additionally, Klinger explained the formal process for consolidating two lots in Philadelphia, which did not occur here. N.T. at 45-46.
Also, as the City points out, and contrary to Objectors' contentions, no credible evidence was presented of any affirmative action to "unify" the subject property and 513 Delancey Street, such as continuous paving across both lots, see, e.g., Price, or joining the lots with a perimeter fence. See, e.g., Alpine. Moreover, Daley relied on by Objectors, is distinguishable. In that case, there was "no dispute that the [applicant] intended to have one integrated parcel, and thus the lots should be treated as one tract for purposes of zoning." Daley, 770 A.2d at 819. Here, Developer clearly disputed Objectors' assertions that the subject property and 513 Delancey Street were intended for use as one integrated lot.
In sum, the record adequately supports the ZBA's determination that the subject property did not merge with 513 Delancey Street. Concl. of Law No. 7. Therefore, assuming the merger doctrine applies in cases arising under the Zoning Code, no error is apparent in the determinations of the ZBA and the trial court that Objectors did not prove the subject property and 513 Delancey Street merged for zoning purposes. See, e.g., Tinicum Twp. (findings that landowners, who owned two adjacent lots and maintained a lot adjacent to their residence as a lawn, picnic and play area, did not support conclusion that landowners intended to integrate the adjoining lots into one residential lot); Gregor, 627 A.2d at 311 (evidence that landowners owned two adjacent lots and used the lot adjacent to their residence as a lawn area "falls short of any physical features manifesting the [landowners'] intent to integrate the two lots into a single residential parcel."); Black (rejecting appellants/neighbors' assertions that landowners merged, for zoning purposes, two adjoining lots by riding a tractor, maintaining trees and having a shed on an undeveloped property that was adjacent to a lot developed with a single-family home).
As such, and contrary to Objectors' assertions, this is not a situation such as that referred to in In re Realen Valley Forge Greenes Associates, 838 A.2d 718, 732 (Pa. 2003), where the fact-finder's necessary findings, although minimally supported by record evidence, capriciously and without reasonable explanation disregarded overwhelming evidence having a contrary import. Rather, the ZBA's findings and determinations here are sufficiently supported by the record.
Reviewing the merger doctrine in Cottone v. Zoning Hearing Bd. of Polk Twp., 954 A.2d 1271, 1276 (Pa. Cmwlth. 2008) (en banc), this Court explained (with underlined emphasis added):
In general, mere common ownership of adjoining properties does not automatically result in a physical merger of the properties for zoning purposes. On the other hand, adjoining properties under common ownership can merge when a zoning ordinance provision causes one or more of the adjoining lots to become undersized, depending on the facts and circumstances of each case. The focus of the inquiry is upon (1) when the properties in question came under common ownership and (2) the effective date of the applicable zoning ordinance.
Adjoining lots under separate ownership before a zoning ordinance enactment makes the lots too small to build upon are presumed to remain separate and distinct lots. Should those adjoining, undersized lots be thereafter acquired by a single owner, the burden is on the municipality to show the new common owner has merged the two lots into one. Otherwise, the result would be to permit separate development of each lot by any person other than the common owner. ...
On the other hand, lots are presumed to merge as necessary to comply with a zoning ordinance's lot size requirements where they are under common ownership prior to the passage of the ordinance. It is the landowner's burden to rebut this presumption by proving an intent to keep the lots separate and distinct. In doing so, the landowner's subjective intent is not determinative; rather, there must be proof of some overt or physical manifestation of intent to keep the lots in question separate and distinct. ...
In summary, 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 the property undersized, then the two lots are presumed to have merged. The burden is on the landowner to rebut the presumption.
In their reply brief, Objectors point to the existence of a "unity of use" zoning concept set forth in a 1991 legal opinion authored by an Assistant Solicitor for the City of Philadelphia. There, the Solicitor addressed whether: "In developing their properties, can separate owners or a consortium of developers who are separate owners of contiguous parcels treat the parcels as one lot for zoning purposes?" Appellants' Reply Br., Ex. A at 1-2. Ultimately, the Solicitor opined that multiple owners of contiguous parcels could enter into recorded agreements to have their parcels considered as a single lot for zoning purposes.
The applicability of the "unity of use" concept is unclear here where there is no assertion that there is a recorded agreement to have the subject property and 513 Delancey Street be considered as a single lot for zoning purposes. More importantly, in a 2012 decision, this Court cast serious doubt on the vitality of the Solicitor's 1991 opinion approving the "unity of use" concept. Soc'y Hill Civic Ass'n.
B. Permit Application
1. Contentions
Objectors also contend Developer misrepresented the condition of the subject property as "vacant" in its application for the permit. To the contrary, the subject property was long used for a parking space, landscaping and a garden. Because the characterization of the lot as vacant was untrue, L&I was misled in issuing the permit, and this Court should order L&I to revoke the permit.
Had Developer completed the application more candidly, Objectors contend, the zoning examiner in the first instance may have been alerted to the possible merger of the parcels, and L&I could have considered the issue initially. Assuaged by Developer's representations, neither the examiner nor L&I examined the issue independently. It fell on Objectors to raise merger. In any event, the characterization of the subject property as vacant was wrong, creating an inherent fatal deficiency on the face of the application, which can only be cured by review of a fresh application.
2. Analysis
We reject Objectors' argument that Developer's zoning/use permit application contained a material misrepresentation justifying revocation on the permit. More specifically, on its application for zoning/use permit, in the space requesting information as to "CURRENT USE OF BUILDING/SPACE," Developer responded "vacant lot." R.R. at 17a. At the hearing, Developer testified he provided this answer because the subject property did not contain a structure. N.T. at 52.
In rejecting Objectors' argument that Developer's response on the permit application constituted a material misrepresentation requiring revocation of the permit, the ZBA stated: "The [ZBA] concludes that [Developer] did not misrepresent a material fact by stating in the [a]pplication that the [s]ubject [p]roperty was a 'vacant lot' because there were no structures on the [s]ubject [p]roperty." Concl. of Law No. 6. Further, in explaining that the record supported the ZBA's determination, the trial court stated:
[T]here is substantial evidence supporting the fact that [Developer] did not mislead L&I by describing [the subject property] as a vacant lot. Though the [Zoning] Code explicitly defines 'lot,' ... there is no such definition for 'vacant.' ...; accordingly, the term 'vacant' must be 'ascribed [its] ordinary definition[].' Black's Law Dictionary states, in part, that vacant can be defined as '[e]mpty [or] unoccupied.' With that in mind, this Court reviewed the [c]ertified [r]ecord to determine whether there was substantial evidence in support of [the subject property] being deemed as such. Though, as already noted, [the subject property] is certainly not a virgin, untouched piece of land, it remains that the [c]ertified [r]ecord
is replete with evidence showing that, thus far, the development of this property has been extremely limited in nature and, additionally, is devoid of proof that [the subject property] ever contained an inhabitable structure. Accordingly, this Court determined that there was substantial evidence to support the [finding] that [the subject property] could be deemed empty or unoccupied and that, therefore, this property could be considered vacant. Given that [the subject property] is a 'lot,' as defined in the [Zoning] Code ... the result is that there is substantial evidence in the [c]ertified [r]ecord that supports the ZBA's finding that [Developer] did not mislead L&I by describing [the subject property] as a 'vacant lot.' ...Tr. Ct., Slip Op. at 7-8 (footnotes and citations omitted). Based on our review of the record and the plain meaning of the undefined term "vacant" ("[e]mpty; unoccupied[,]" see BLACK'S LAW DICTIONARY 1584 (8th ed. 2004)), no error is apparent in the determinations of the ZBA and the trial court that Developer's notation as to the "current use of building/space" on the permit application as a "vacant lot" did not constitute a material misrepresentation requiring revocation of the permit.
In any event, Objectors cite no authority for their claim that this Court may revoke the permit based on this purported misstatement in the application. To that end, our review of the application reveals that, by completing and filing the application, the applicant certified: "[T]he statements contained herein are true and correct to the best of my knowledge and belief. ... I understand that if I knowingly make any false statement herein I am subject to such penalties as may be prescribed by law or ordinance." R.R. at 17a (emphasis added).
Thus, the remedy for knowing misstatements is of a criminal nature rather than an administrative nature, such as permit revocation. Nevertheless, the ZBA did not find Developer knowingly made any false statement on the application. To the contrary, the ZBA determined Developer "did not misrepresent a material fact" by stating that the subject property was a "vacant lot" on the application. Concl. of Law No. 6.
Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 5th day of June, 2015, the order of the Court of Common Pleas of Philadelphia County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge
Id. at 1275-77 (citations omitted). Our review of the record here reveals that Objectors, who appealed the issuance of the permit on the ground that Developer could not carry out its proposal on the subject property because the subject property merged with 513 Delancey Street, offered no evidence as to the effective date of the applicable Zoning Code as it relates to when the subject property and 513 Delancey Street came under common ownership. Nor do they present any clear, developed argument on this point in their brief to this Court. Under these circumstances, Objectors are not entitled to a presumption that the subject property and 513 Delancey Street merged here.