# J.E. Trivelpiece v. Briar Creek Borough ZHB

> Commonwealth Court of Pennsylvania · May 7, 2026

URL: https://www.frixlaw.com/law-library/cases/11322052

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** May 7, 2026
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Fizzano Cannon
- **Judges:** Fizzano Cannon
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11322052

## How later opinions describe it (automated extraction)

- holding that use of an adjoining lot as a lawn area, garden, and truck passage was insufficient to establish merger
- stating that “the merger of lots doctrine has no application to a nonconforming lot located 9 in a jurisdiction where the zoning ordinance adopted by the local governing body does not contain a merger of lots provision”
- observing that many municipalities adopt zoning provisions to address merger “when one of two separate yet contiguous lots held by the same owner has been rendered undersized by the passage of an ordinance requiring a larger lot size than what was previously required . . .”
- explaining that lots did not merge by reason of conveyance on a single deed
- explaining that “[a] zoning ordinance can provide for a merger of lots where two adjoining lots are owned in common and, thereafter, zoning renders one of the lots nonconforming in size”

## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Trivelpiece, Tammy J. :
Trivelpiece, and Holli Trivelpiece, :
Appellants :
:
v. :
:
Briar Creek Borough Zoning :
Hearing Board :
:
v. :
: No. 56 C.D. 2024
Jordan Smith : Argued: April 13, 2026

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE STACY WALLACE, Judge

OPINION
BY JUDGE FIZZANO CANNON FILED: May 7, 2026

John E. Trivelpiece, Tammy J. Trivelpiece, and Holli Trivelpiece
(jointly, Objectors) appeal from an order of the Court of Common Pleas of Columbia
County (Common Pleas) dated December 28, 2023. Common Pleas dismissed
Objectors’ appeal and thereby affirmed a decision of the Briar Creek Borough
Zoning Hearing Board (Board) dated April 27, 2023, which granted a special
exception to Jordan Smith (Applicant). After careful review, we reverse Common
Pleas’ order.

I. Background
Applicant owns a property in Briar Creek containing 2.43 acres. Br. of
Appellants, Appendix C (Bd. Dec.) at 1; Reproduced Record (RR) at 248a. On the
deed, the property consists of two separately described tracts. Bd. Dec. at 1; RR at
248a; see also RR at 329a (site plan showing two tracts). The zoning is VC, Village
Commercial. Bd. Dec. at 1; RR at 231a (BRIAR CREEK BOROUGH, PA. ZONING
ORDINANCE (2014) (Zoning Ordinance) zoning map). VC zoning is aimed at
residential uses along with small businesses meant to conveniently provide for
everyday needs, such as service businesses not generating much noise, light, or
traffic. RR at 80a; Zoning Ordinance § 600. The previous owner of the property
had a window supply and sales business that constituted a preexisting
nonconforming use.1 RR at 234a & 240a. Record evidence of the extent of any
manufacturing or assembly that took place on the property is scant and inconclusive.
See, e.g., RR at 240a, 242a & 247a (testimony of uncertainty concerning previous
nonconforming use by window business). Nonetheless, the Board found as a fact
that the “property was formerly used for various commercial activities, including but
not limited to, window manufacturing.” Bd. Dec. at 1.
Since Applicant’s purchase of the property, he has used it “for welding
and other related commercial activities associated with [his] business.” Bd. Dec. at
1. He testified that most of his work and that of his several employees takes place

1
Section 103.1 of the Zoning Ordinance provides: “Any legally established existing use
of a building, structure, lot or parcel of land or part thereof, as of the effective date of this
Ordinance may be continued.” Zoning Ordinance § 103.1. Similarly, Section 1300.1A confirms
that

if, prior to the adoption of the original . . . Zoning Ordinance, . . .
property was used for a then lawful purpose or in a then lawful
manner which the Zoning Ordinance would render thereafter
prohibited and nonconforming, such property is generally held to
have acquired a vested right to continue such nonconforming use or
nonconforming structure.

Zoning Ordinance § 1300.1A.

2
offsite at customers’ places of business. RR at 237a-38a. The current building
housing Applicant’s business is located on the smaller of the two tracts on the deed
(first tract). RR at 248a; see also id. at 329a (site plan showing existing building on
first tract).
Applicant wants to build an addition of about 2,200 square feet onto the
main structure for the business. Bd. Dec. at 1. Applicant alleges that the addition
would merely be for “storage” and would not change the current use. RR at 236a-
40a. However, Applicant recently purchased a large industrial brake press for his
business, which would be housed in the proposed addition. Id. at 242a & 326a. On
cross-examination, Applicant admitted the brake press would be used onsite, in
contrast to his direct testimony that most of the business’s work is done on
customers’ premises and that the proposed addition would be solely for storage. See
id. at 241a & 243a; see also RR at 326a (photograph and caption referring to the
anticipated “small addition” to the building and stating that the addition will
“accommodate” the “400[-]ton brake pres[s] and shear”2 so that they can be
“operational”).
Applicant acknowledged at the Board hearing that the addition would
be located mainly on the larger tract (second tract) rather than the first tract. RR at
248a; see also id. at 329a (site plan showing proposed addition almost completely
on second tract). In anticipation of the addition, Applicant built a substantially sized
driveway, also on the second tract, without seeking the required driveway permit.
See id. at 249a & 250a; see also id. at 329a (site plan showing gravel driveway on
second tract). It appears a permit was granted sometime after the fact, although
Objectors question the propriety of the driveway placement under the Zoning

2
Despite having purchased the “shear,” Applicant testified that he no longer planned to
operate it on the property. RR at 242a-43a.

3
Ordinance.3 See id. at 250a. Applicant also placed an outbuilding, which he
described as a “shed” but which is 14 by 40 feet in size, on the second tract.4 Id. at
236a-37a. The “shed” rests on gravel and is not affixed to the real property. Id. at
237a.
The Board decided that Applicant’s current use is a qualifying
nonconforming use to which he is entitled. Bd. Dec. at 1. The Board apparently
treated the property as one zoning lot because both tracts are on one deed, although
they have separate metes and bounds descriptions. See RR at 248a & 329a. The
record does not reflect any consideration by the Board of whether the two tracts have
merged for zoning purposes; the Board seems merely to have assumed it. The Board
decided that Applicant’s proposed addition would be an expansion of his existing
nonconforming use that would require only a special exception, not a variance. Bd.
Dec. at 1. After a hearing, the Board granted the special exception, with some

3
Section 1300.2 of the Zoning Ordinance provides that

[a]ny lot, structure or use created, constructed or established after
the effective date of the original Zoning Ordinance, as amended,
reenacted and replaced, which does not conform to the applicable
requirements shall be considered an illegal lot, structure or use
subject to the penalties prescribed by this Ordinance, and the said
lot, structure or use shall not be entitled to any of the protections
afforded to legal, pre-existing nonconforming lots, structures or
uses.

Zoning Ordinance § 1300.2.
4
Notably, the Zoning Ordinance defines a “shed” as “[a] detached accessory structure used
for the storage of tools, minor equipment, and materials, but too small for the storage of an
automobile.” Zoning Ordinance § 202 (emphasis added). A structure 14 by 40 feet in size is large
enough to store an automobile, depending on the size of its entry opening. In light of our
disposition of the merger issue below, however, we need not decide whether the “shed” meets the
Section 202 definition.

4
conditions to limit lights, sounds, dust, and odors transmitted to neighboring
properties. Id. at 3.
Objectors appealed the Board’s decision to Common Pleas, which
affirmed without taking any additional evidence. Br. of Appellants, Appendix A.
Objectors’ appeal to this Court followed. On July 25, 2025, this Court issued an
order directing the parties to submit supplemental briefs addressing whether a
merger for zoning purposes has occurred regarding the two tracts and whether the
nonconforming use on one tract may be expanded onto the adjacent tract, inasmuch
as both tracts were conveyed to Applicant on one deed. The parties have filed their
supplemental briefs and argued their respective positions, and this matter is now ripe
for review and disposition by this Court.

II. Issues
Objectors raise three issues on appeal.5 First, Objectors assert that
Applicant’s proposed construction required a variance, not merely a special
exception, both for the proposed use and because the building addition and new
driveway would extend onto a separate adjoining lot. Second, Objectors contend
that the Board erred by granting the special exception because Applicant failed to
meet the Special Exception Provisions and the Supplemental Provisions in the
Zoning Ordinance. Third, Objectors argue that Applicant’s current use is not a
permitted use in the VC zoning district and that Applicant failed to meet the

5
Where a court of common pleas has not taken additional evidence, this Court’s review is
limited to determining whether the zoning hearing board has committed an error of law or an abuse
of discretion. Loughran v. Valley View Devs., Inc., 145 A.3d 815, 817 n.1 (Pa. Cmwlth. 2016).
Where the issues before this Court for review present pure questions of law, however, our standard
of review is plenary. Id.

5
applicable standards and criteria of the Zoning Ordinance for expansion of the
existing nonconforming use.

III. Discussion
A. Variance or Special Exception
1. New Driveway
Objectors cogently argue:
Section 1310.2(D) of the Zoning Ordinance specifically
states that in no case will a change, addition or expansion
of a non-conforming use be allowed which would result in
the diversion of traffic or relocation of a driveway on the
site to any point nearer a residential property. []RR [at]
212a[]). This is exactly what the [Applicant] did in this
case. []RR [at] 249a[]. [Applicant] put a driveway in on
the [second tract] nearest Holli Trivelpiece’s home
without obtaining a permit or zoning approval. []RR [at]
249a, 250a[]. [Applicant], without zoning approval,
expanded a nonconforming use which resulted in the
diversion of traffic not only [onto] an adjoining lot, but
also [onto] two points on East Rittenhouse Mill Road.
[]RR 249a, 250a[]. See also Zoning Site Plan. []RR
329a[].
A Special exception does not cure these violations of the
Zoning Ordinance; a variance is needed for the driveway.
Neither the . . . Board, nor the code officer can grant
permission for this driveway. It is anticipated that
[Applicant] will argue that the industrial use and driveway
are not part of this special exception application[;]
however, it clearly is. Larry Frace, Borough Zoning
Officer testified at the April 20, 2023 hearing that the
hearing was for both the use and the request for the
extension. []RR [at] 241a[]. In addition, Section 1306.2
of the Zoning Ordinance states that expansions of
nonconforming use shall be limited to the same parcel of
property on which the nonconforming use is situated as
said parcel existed on the effective date of [the Zoning
O]rdinance. []RR [at] 209a[]. [Applicant’s] proposed

6
addition is being built onto his adjoining parcel, and even
though the parcel is also owned by [Applicant], is a clear
violation of the Zoning Ordinance in relation to expanding
nonconforming uses.
Again, a special exception does not cure this violation of
the Zoning Ordinance; a variance is needed for the
expansion onto another parcel.
Br. of Appellants at 10-11 (underlining original; italics added). We agree.
Applicant does not dispute that the new driveway, which he initially
added to the second tract without seeking a permit, has been placed at a point
substantially nearer to Holli Trivelpiece’s residential property than the original
driveway. See RR at 329a (site plan showing placement of new driveway).
Therefore, without regard to whether Applicant’s two tracts have merged for zoning
purposes,6 the driveway is improperly placed in the absence of a variance.
We also agree with Objectors that the Board’s hearing encompassed
both the building addition and the driveway. Testimony elicited at the Board hearing
addressing the driveway clearly indicated that Objectors were challenging its
permissibility under the Zoning Ordinance, and the Board asked specific questions
concerning the driveway as well. See RR at 236a, 241a, 249a-50a, 254a-56a, 258a,
260a-76a; see also id. at 329a (site plan showing gravel driveway on second tract).
In light of the Zoning Ordinance’s mandatory provision regarding driveway
relocations, we must conclude that both the Board and Common Pleas erred in
failing to recognize that the driveway violated the Zoning Ordinance in the absence
of a variance.

6
The issue of merger is discussed in the next section.

7
2. Merger of Applicant’s Two Tracts
Applicant asserts that his proposed expansion of his nonconforming use
in the form of an addition to his existing building is less than the 50% size limitation
contained in the Zoning Ordinance.7 We agree, and indeed, that assertion does not
appear to be disputed. However, there is likewise apparently no dispute that the
existing building is confined to the first tract, notwithstanding Applicant’s recent
unpermitted placement of the new driveway and “shed” on the second tract. See RR
at 248a (observation by counsel, not denied by Applicant, that the existing building
is on one tract and the proposed addition is on the other); id. at 329a (site plan
showing existing building on the first tract, the new driveway on the second tract,
and the proposed addition almost completely on the second tract).
The Zoning Ordinance is clear in precluding the expansion of a
nonconforming use onto a separate adjoining tract of land. Although Applicant
asserts that the second tract has been used for business purposes such as storage of
materials, Section 1306.2 of the Zoning Ordinance provides that
expansions of a nonconforming use shall be limited to the
same parcel of property on which the nonconforming use
is situated as said parcel existed on the effective date of
th[e] Ordinance. For any nonconforming use not involving
a structure, no new structures shall be permitted as part of
an expansion.
Zoning Ordinance § 1306.2. Thus, even assuming that Applicant has previously
used some part of the second tract for his business, which Objectors dispute, whether
Applicant could expand his building onto his second tract without a variance

7
Section 1306.3 of the Zoning Ordinance provides that “[a]n expansion of land or structure
used for the nonconforming use shall be limited to a total increase not to exceed fifty (50) percent
of land and fifty (50) percent of structure beyond what existed on the effective date of th[e]
Ordinance . . . .” Zoning Ordinance § 1306.3.

8
depends on whether the two tracts have remained separate or have merged, as those
terms are applied to zoning law.
The Board appears to have assumed that Applicant’s two tracts of land
were effectively one because they were conveyed to him on the same deed. See RR
at 248a. Conveyance of two tracts on a single deed, however, does not establish
merger. See In re Jerrehian, 155 A.3d 674, 687 (Pa. Cmwlth. 2017) (explaining that
lots did not merge by reason of conveyance on a single deed). We conclude that, on
the record before us here, Applicant failed to establish a merger of the two tracts for
purposes of expansion of the nonconforming use.
This Court has explained:
“[T]he term ‘merger’ is used to describe the effect of a
zoning ordinance on the adjoining lots held in common
ownership.” Tinicum [Twp.] v. Jones, 723 A.2d 1068,
1071 (Pa. Cmwlth. 1998) (citation omitted) (emphasis
added). The doctrine of merger does not exist as a matter
of common law; it is totally dependent on a merger
provision in the relevant zoning ordinance. 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.” Appeal
of Gregor, . . . 627 A.2d 308, 311 (Pa. Cmwlth. 1993). The
proof required “must be grounded upon some overt,
unequivocal, physical manifestation of this intent . . . .”
[Twp.] of Middletown v. Middletown [Twp.] Zoning
Hearing [Bd.], . . . 548 A.2d 1297, 1299 (Pa. Cmwlth.
1988).
Jerrehian, 155 A.3d at 686. In short, “merger is not a matter of common law. For
the doctrine to be invoked, there must be a provision in the zoning ordinance that
requires a merger of two lots, in common ownership. . . .” Id. at 687; see also
Loughran v. Valley View Devs., Inc., 145 A.3d 815, 817 (Pa. Cmwlth. 2015) (stating
that “the merger of lots doctrine has no application to a nonconforming lot located

9
in a jurisdiction where the zoning ordinance adopted by the local governing body
does not contain a merger of lots provision”).
Notably, merger provisions in zoning ordinances generally address
circumstances involving common ownership of adjoining lots that have individually
been rendered nonconforming in size – not in use – by the subsequent adoption of a
zoning ordinance. See, e.g., Jerrehian, 155 A.3d at 680 (explaining that “[a] zoning
ordinance can provide for a merger of lots where two adjoining lots are owned in
common and, thereafter, zoning renders one of the lots nonconforming in size”)
(citing In re Puleo, 729 A.2d 654, 656 (Pa. Cmwlth. 1999)); Loughran, 145 A.3d at
821 (observing that many municipalities adopt zoning provisions to address merger
“when one of two separate yet contiguous lots held by the same owner has been
rendered undersized by the passage of an ordinance requiring a larger lot size than
what was previously required . . .”); Cottone v. Zoning Hearing Bd. of Polk Twp.,
954 A.2d 1271, 1275 (Pa. Cmwlth. 2008) (stating that “adjoining properties under
common ownership can merge when a zoning ordinance provision causes one or
more of the adjoining lots to become undersized . . .”) (citing Middletown, 548 A.2d
at 1300).
Here, consistent with the common merger circumstance, Section
1311.2 of the Zoning Ordinance provides: “If a proposed use straddles adjoining
nonconforming lots, the lots shall be combined into a single parcel in accord with
the requirements of the Briar Creek Borough Subdivision and Land Development
Ordinance.” Zoning Ordinance § 1311.2. The parties disagree on whether this
constitutes a merger provision. On its face, however, this provision plainly applies

10
only to nonconforming lots, not to nonconforming uses.8 Thus, it has no application
to the merger issue in this case. We conclude, therefore, that the Zoning Ordinance
contains no merger provision that applies to multiple tracts where, as here, a
nonconforming use is presently occurring on only one of two tracts. Accordingly,
we are constrained to conclude that the first and second tracts here cannot be deemed
to have merged for purposes of expanding the existing nonconforming use through
an addition to the existing building.
We note additionally that, although Applicant bore the burden of
demonstrating merger, our conclusion would be the same regardless of the allocation
of the burden of proof regarding merger because the absence of merger here is a
legal conclusion dictated by the absence of an applicable merger provision in the
Zoning Ordinance. Further, we observe that Applicant offered no evidence of any
overt, unequivocal, physical manifestation of an intent to merge the two tracts except
the placement of the new driveway and “shed,” which do not establish merger;
Applicant’s alleged use of the second tract for storage or parking was insufficient to
support a conclusion of merger. Cf. Craft Custom Homes, LLC v. Zoning Hearing
Bd. of Newtown Twp. (Pa. Cmwlth., No. 500 C.D. 2023, filed Jan. 29, 2025), slip op.
at 189 (determining that use of the adjoining lot for a garden and a doghouse was
insufficient to establish merger with the tract containing the primary use because the
garden and doghouse were not of the character necessary to establish merger under
the zoning ordinance, which contemplated structures of “permanent type and

8
Moreover, this provision facially requires that a merger be accomplished pursuant to the
applicable subdivision and land development ordinance; it does not indicate that merger is deemed
to occur on the basis of any other circumstance. See Zoning Ordinance § 1311.2.
9
This unreported decision is cited as persuasive authority pursuant to Section 414(a) of
this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).

11
intensity” such as a garage or a pool); Riccio v. Newtown Twp. Zoning Hearing Bd.,
308 A.3d 928, 940-41 (Pa. Cmwlth. 2024) (concluding that placing a trampoline and
parking a car on an adjoining lot did not effect a merger); Tinicum Twp. v. Jones,
723 A.2d 1068, 1073 (Pa. Cmwlth. 1998) (holding that two lots did not merge where
the second lot was used as a lawn area with a picnic table and a child’s swing set);
Appeal of Gregor, 627 A.2d 308, 311 (Pa. Cmwlth. 1993) (holding that use of an
adjoining lot as a lawn area, garden, and truck passage was insufficient to establish
merger). In addition, we observe that the added driveway and “shed” were not only
unpermitted when placed on the second tract, but were recent changes made in
anticipation of expanding Applicant’s nonconforming use. Applicant cannot use
such unpermitted changes to bootstrap his way into the appearance of merger.
Additionally, although authority concerning merger for purposes of
expanding a nonconforming use is scant, the little caselaw we have found
persuasively rejects such merger. In Pittsburgh Trust v. City of Pittsburgh Zoning
Board of Adjustment, No. S.A. 11-000668, 2011 Pa. Dist. & Cnty. Dec. LEXIS 407
(C.P. Dec. 7, 2011), a common pleas court reversed the portion of a zoning hearing
board decision that had allowed expansion of a nonconforming use onto an adjacent
tract and the merger of the two tracts for purposes of expanding the nonconforming
use. Id. at *8-*9. The zoning ordinance at issue there contained a provision that
“prohibit[ed] the merger of a lot containing a nonconforming use with an adjacent
lot for the purpose of creating a single larger zoning lot and further forb[ade] a
nonconforming use from being situated on th[e] single larger zoning lot.” Id. at *6.
Here, as set forth above, Section 1306.2 of the Zoning Ordinance limits a
nonconforming use “to the same parcel of property on which the nonconforming use
is situated as said parcel existed on the effective date of th[e Zoning] Ordinance

12
. . . .” Zoning Ordinance § 1306.2. We find this provision sufficiently similar to the
provision in Pittsburgh Trust that the latter offers persuasive authority against
merger in the circumstances present in this case.
Consequently, we conclude that Applicant must obtain variances as
required by the Zoning Ordinance in order to expand his building, relocate or add a
driveway, and retain the new “shed” on the second tract. Both the Board and
Common Pleas erred as a matter of law in determining otherwise.

B. Additional Issues Raised on Appeal
As set forth above, Objectors also contend that Applicant failed to meet
the Special Exception Provisions and the Supplemental Provisions in the Zoning
Ordinance and that Applicant failed to meet the applicable standards and criteria of
the Zoning Ordinance for expansion of the existing nonconforming use. Because of
our disposition of the merger issue, however, we do not reach Objectors’ alternate
arguments.

IV. Conclusion
Based on the foregoing discussion, the order of Common Pleas is
reversed.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

John E. Trivelpiece, Tammy J. :
Trivelpiece, and Holli Trivelpiece, :
Appellants :
:
v. :
:
Briar Creek Borough Zoning :
Hearing Board :
:
v. :
: No. 56 C.D. 2024
Jordan Smith :

ORDER

AND NOW, this 7th day of May, 2026, the order of the Court of
Common Pleas of Columbia County dated December 28, 2023 is REVERSED.

__________________________________
CHRISTINE FIZZANO CANNON, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11322052. Public record. Not legal advice.