What is the definition of a “building lot?” That question is the subject of this appeal from Lackawanna County.

Robert and Ann Cosner (the “Applicants”) own a 25.6-acre property in Newtown Township in Lackawanna County, PA. In 1989, the Applicants entered into a 99-year lease agreement with the Commonwealth Telephone Company, now known as Frontier Communications (“Frontier”), granting Frontier the right to use a portion of land on the property to store their utility infrastructure. Frontier built an open-air structure on this property, which contains communication equipment. Vasky (the “Objector”) owns property adjacent to the property. Applicants, Frontier, and Objector all share a private driveway that runs through the property. In 2017, Applicants proposed to subdivide their property into two parcels, and to sell one of the parcels to a third party (“Purchaser”) who intended to build a house on the property. Under Applicants’ proposal, the private driveway would also service the Purchaser’s new home. Applicants submitted a petition to the Zoning Hearing Board of Newtown Township (the “Board”), seeking the grant of two variances, and requesting for the Board to interpret the zoning ordinance to determine whether the proposed subdivision would necessitate a variance pursuant to section 306.10 of the ordinance. That section provides that a private road “shall not serve more than three (3) building lots as authorized by the Board of Supervisors.”

After conducting two hearings, the Board reasoned that the land used by Frontier was not a “building lot” because of its’ small size, and because it was nothing more than an easement. The Board concluded, “the use of the private drive by [Frontier] is not servicing a ‘building lot’ … and therefore is not to be counted as one of the users of the driveway.” As a result, the Board determined that the proposed subdivision did not require a variance from section 306.10 of the ordinance because the driveway would only be servicing three “building lots” (the lots owned by Applicants, Objector, and Purchasers) in conformance with the ordinance.

Objector appealed the Board’s determination to the trial court, which affirmed without taking additional evidence. On appeal to the Commonwealth Court, Objector argued that both the Board and trial court erred in determining that Frontier’s portion of the property was not a “building lot.” Although the ordinance did not define “building lot,” it did define the terms “building” and “lot.” Based on these definitions, Objector claimed that the utility structure “has a roof and is supported by columns” to fulfill the definition of “building” under the ordinance, and that the part of the property where the utility shelter is situated constitutes “land occupied by a building” to fulfill the definition of “lot” under the ordinance. Accordingly, Objector argued that a variance is required for the proposed subdivision, because four building lots would be utilizing the private driveway in violation of section 306.10 of the ordinance.

 The Commonwealth Court vacated the trial court’s decision and remanded for further proceedings before the Zoning Hearing Board. The Court first consulted the dictionary to provide a definition of the phrase “building lot.” The Court then rejected the Board’s conclusion that Frontier’s portion of the property was not a “building lot” due to its small size, finding that dimensional criteria are not relevant to the determination of a “building lot” under the ordinance. The Court additionally found that remand was necessary for the Board to make factual findings as to whether the utility structure was a “building” under the ordinance definition, and whether Applicant’s property agreement with Frontier effected a “subdivision” of the property.

Click here to read: Vasky v. Zoning Hearing Bd. Of Newtown Twp., No. 560 C.D. 2018 (Pa. Commw. Ct., January 8, 2019).

Edited by:

Mark D. Eastburn