Same Deed. Separate Tracts. Big Zoning Issue.
Written by Laurel Bennett
The distinction between permissible and impermissible uses of nonconforming land can quickly become a gray area. In John E. Trivelpiece, Tammy J. Trivelpiece, and Holli Trivelpiece v. Briar Creek Borough Zoning Hearing Board v. Jordan Smith (Commonwealth Court, filed May 7, 2026), the parties quickly discovered this complexity.
Jordan Smith owns two separate tracts of land under one deed in Briar Creek Borough zoned as Village Commercial. This type of zoning allows residential uses, as well as minimally disruptive small businesses meant to help with residents’ essential needs. The previous owner of Smith’s land used it to run a window supply and sales business, which was a preexisting nonconforming use.
Since purchase, Smith used the land to help operate his commercial business, primarily through welding onsite. Importantly, the building where Smith runs his business sits on only one tract of land. Smith proposed a 2,200 square foot addition to this central building, asserting that it would strictly be used for storage and would not alter the operations of his building. However, Smith admitted to purchasing a large industrial brake press which would be used in the proposed addition, resulting in the addition not being used for storage. Additionally, the proposed addition was designed to extend onto the second tract of land. A permit was also retrospectively granted upon Smith building a driveway on the second tract for this addition.
Prior to the proposed addition being approved, Smith built an outbuilding on the second tract. The Briar Creek Borough Zoning Hearing Board (Board) ruled that Smith’s current and proposed uses of the land was a permissible nonconforming use, treating it as one lot despite the separate tracts. Therefore, the Board merely required a special exception. As a result, the Trivelpieces, residents of the borough, appealed the Board’s decision to the Court of Common Pleas, where the ruling was affirmed again. The Trivelpieces then appealed to the Commonwealth Court.
On appeal, the Trivelpieces presented three arguments. First, they stated that Smith needed a variance, not a special exception, due to the proposed addition and recently built driveway extending to the second tract. Next, they asserted that the Board should not have granted the special exception in the first place due to Smith’s failure to comply with the borough’s Zoning Ordinance. Lastly, the Trivelpieces argued that Smith’s current use of the land is impermissible under the Village Commercial zoning designation and that there should not be an expansion of the existing nonconforming use through the proposed addition.
As to whether there needed to be a variance rather than a special exception, the Court largely focused on the new driveway that was initially constructed without a permit rather than the proposed addition. The Trivelpieces focused on Section 1310.2(D) of the borough’s Zoning Ordinance, which does not permit a nonconforming use to be altered in a way that would cause either a diversion of traffic or a relocation of a driveway closer to a residential property. Smith’s new driveway was significantly closer to the Trivelpieces’ driveway than before. This blatant violation of the Zoning Ordinance resulted in a variance being needed rather than a special exception.
Importantly, the Court further considered the requirements of the borough’s Zoning Ordinance. It was undisputed that Smith’s initial building was located on only one tract of land and that the recently constructed outbuilding and driveway extended to the second tract of land. Section 1306.2 of the Zoning Ordinance prohibits the expansion of a nonconforming use onto a separate adjoining tract.
In order to determine whether Smith’s proposed building addition would expand the preexisting nonconforming use to another tract, the Court considered whether the tracts where deemed to have merged. Crucially, the Board incorrectly assumed that the tracts were merged due to them being under the same deed. The borough’s Zoning Ordinance lacks a merger provision indicating that tracts can merge when under the same deed. Therefore, the Zoning Ordinance restricts nonconforming uses to only the initial tract of land on which it originated.
Because the Court determined that Smith needed a variance and that the tracts of land did not merge, the Trivelpieces’ other issues raised on appeal were not considered. Ultimately, the Court ruled that Smith must receive a variance to proceed with the addition to his building, further alter the driveway, and keep the recently constructed outbuilding.
Zoning ordinances can create complex issues for property owners, neighbors, developers, and local municipalities. Contact MPL to learn how our Land Use, Municipal, and Litigation teams can help with these important issues.