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HomeMy WebLinkAbout21-1984-0226 Orphans' BARRY L. STROCK, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION V. THE STROCK FAMILY TRUST, GEORGE N. STROCK, as co-trustee, GEORGE N. STROCK, individually, ROSALIE: A. GREEN, JUDY KAY HOCH, NANCY C. RYDER, and RUTH A. STROCK, RESPONDENTS NO. 21-84-226 IN RE: PARTITION OF REAL PROPERTY OPINION AND INTERIM ORDER OF COURT Bayley, J., March 22, 2007:-- This action to partition a farm was commenced by Barry L. Strock on March 11, 2005. On January 17, 2006, an order was entered partitioning the farm property at 815 Williams Grove Road, Upper Allen Township, Cumberland County, Pennsylvania. The two co-tenants are: (1) The Strock Family Trust - an undivided one-half interest, and (2) Barry L. Strock - an undivided one-half interest. The Strock Family Trust was created by George W. Strock in his last will and testament and codicil. After he died, a one-half interest in the farm he owned with his wife, Ruth Strock, was conveyed to the Strock Family Trust. The co-trustees were Barry Strock and George Strock.1 Ruth Strock is the income beneficiary. Upon the death of Ruth Strock, the trust will be divided into one share for each of the living children of George and Ruth Strock, or any deceased child who leaves issue. The Strocks had five children who are all living: 1 On May 13, 2005, an order was entered removing Barry L. Strock as a trustee of the Strock Family Trust. NO. 21-84-226 Barry Strock, -2- NO. 21-84-226 George Strock, Rosalie Green, Judy Hoch, and Nancy Ryder. In 2001, Ruth Strock conveyed her one-half interest in the farm to Barry Strock. She has a right to live in the farmhouse during her lifetime. A hearing was conducted on January 26, 2007, pursuant to Pa. Rule of Civil Procedure 1560, which provides: Property Capable of Division without Prejudice If division can be made without prejudice to or spoiling the whole, the property shall be divided as follows: (a) into as many purparts as there are parties entitled thereto, the purparts being proportionate in value to the interests of the parties; (b) if it cannot be divided as provided in Subdivision (a), then into as many purparts as there are parties entitled thereto, without regard to proportionate value; (c) if it cannot be divided as provided in Subdivisions (a) or (b), then into such number of purparts as shall be most advantageous and convenient without regard to the number of parties. A purpart is that part of an estate, which, having been held in common, is by partition allocated to one of the parties to the partition. Seiders v. Giles, 141 Pa. 93 (1891). The Strock farm contains 106.1 acres between Williams Grove Road and Winding Hill Road, with 450 plus foot frontage along Williams Grove Road and 950 plus foot frontage along Winding Hill Road. The residential neighborhood of Country Estates is located to the south of the property. Otherwise, the farm is surrounded by agricultural properties. The property contains a farmhouse, barn and several outbuildings that are accessed off of Williams Grove Road. Ruth A. Strock lives in the farmhouse. Barry Strock and his wife live in an apartment attached to the farmhouse. He operates a horse boarding business on the property. Some of the open land is -3- NO. 21-84-226 leased for growing crops. Barry Strock owns a lot, on which there is a house, with 180 foot frontage on Winding Hill Road to a depth of 150 feet. This lot is surrounded by the Strock farm. Upon the death of Ruth A. Strock, the last will and testament and codicil of George W. Strock provides that the Strock Family Trust is to transfer to Barry Strock "land to increase the size of the lot upon which his house is located to a four hundred (400') foot frontage by four hundred (400') foot deep so that the total of his lot, including the land he possessed prior to [George W. Strock's] death will be one hundred sixty thousand (160,000) square feet."2 When this transfer is completed, it will reduce the 1 06.1 acre farm to 1 05.58 acres. The Strock farm is not served by public sewer or water. Upper Allen Township has funded a feasibility study of extending public sewer to Country Estates, but there is no study even proposed to determine if a sewer should be extended to the Strock farm. The farm is in an Agricultural Zoning District. If sewer is extended to the property, there are provisions in the Zoning Ordinance whereby it could be utilized for residential development as long as part of the land is set aside for conservation. All parties agree that if the property is served by a public sewer, residential development is its highest and best use.3 Until that time, the farm cannot be used for anything but agricultural 2 Respondent, Ruth Strock, is alive and well at age 85. She did not appear and is not represented by counsel. 3 There are high nitrates levels in the limestone base. If the property is developed for residential use, this will preclude separate on-lot septic systems, and other types of -4- NO. 21-84-226 purposes. septic systems are not feasible. -5- NO. 21-84-226 Brian Evans, a civil engineer with experience in site development, testified for Petitioner. He testified that the Strock farm is a relatively square, flat tract of land. There are 7.71 acres on the Williams Grove Road side that lie in the floodplain and cannot be utilized for development. Under the Upper Allen Township Zoning Ordinance, any division of the farm into two parts for residential development in an Agricultural Zone requires leaving considerable acreage open for conservation. Evans is of the opinion that residential lots can be clustered on two tracts that will yield the same number of lots on each tract to the maximum allowed under either of the two methods set forth in the Zoning Ordinance. The Basic Density and Conservation method requires that a minimum of sixty percent of the land be used for agriculture, and the remaining land for residential development. The Enhanced Density with Greater Conservation method requires that a minimum of seventy percent of the land be used for agriculture and the remaining land for residential development. Taking into consideration the floodplain on the Williams Grove Road side, and Barry Strock's separate property as it will be expanded on the Winding Hill Road side upon the death of Ruth Strock, Evans believes that a division with 54.7175 acres on the Williams Grove Road side and 50.8625 acres on the Winding Hill Road side would create two tracts of equal value which could each be developed to yield a maximum of 55 units under the first method and 73 under the second method. Evans concluded that these configurations can be made notwithstanding a twenty foot easement for underground telephone cables that runs generally north-south on what would be the Williams Grove -6- NO. 21-84-226 Road side of the property. His plan is based on lot yields, not development costs. Evans testified that there are multiple locations at which a sewer extension could reach the farm, so a division into two tracts would require cross-easements for public sewer. Under his plan that looks to the value of the land for residential development, the buildings now on the property have no value. He testified that his proposed division into two tracts with more than fifteen residential units on each part, would under the Zoning Ordinance require two points of access from both Winding Hill Road and Williams Grove Road. One point of access would be from the current access on Williams Grove Road. The other would be on Knepper Drive at the northern boundary of Country Estates with the Strock farm. This street, which is unopened, is shown on a subdivision plan for Country Estates as a right-of-way for access to the Strock farm from Williams Grove Road. It is shown on Upper Allen Township plans as an unopened street. Evans also suggested that access could be gained to the north of the current point of access across lands of a third party where there is now an unpaved farm lane. Pamela Fisher, a land planner, testified for Respondents. She offered an opinion that the farm cannot be divided into two tracts without spoiling the value of the whole, and affecting the value of each tract. Fisher agreed with Brian Evans that under the Upper Allen Township Zoning Ordinance, development exceeding fifteen residential units on each of two tracts would require two points of access off of both Williams Grove Road and Winding Hill Road. To get two points of access off of Williams Grove -7- NO. 21-84-226 Road will require access at either Knepper Drive to the south or across the land of a third party to the north. Because of the uncertainty of that access, Fisher concluded that the land could not be divided into two tracts without affecting the value of each. Additionally, unlike Evans, whose analysis was based solely on unit yield, and not development costs, Fisher believes that disparate development costs on two separate tracts would affect the value of each. She noted that because residential units will be clustered in different locations on each tract, the point where sewer is ultimately extended to meet the property will affect the costs of development of one tract more than the other because more sewer line will have to be laid to one than the other. Fisher believes that the residential units will be too small for individual water wells. Therefore, some type of centralized water system will have to be built. One system for the whole would cost less than a separate system for each tract. Fisher also believes that the floodplain and the twenty foot utility easement that now runs through what would become the Williams Grove Road tract could create greater cost in the development and clustering of residential units on that tract which would adversely affect market value of that tract. DISCUSSION Two real estate appraisers who testified for Barry Strock were of the opinion that the fair market value of the Strock farm at its highest and best use for residential development is $1,000,000. An appraiser who testified for the Strock Family Trust was of the opinion that the fair market value was $1,061,000, but he did not consider the -8- NO. 21-84-226 loss of the land that will be added to the lot of Barry Strock on Winding Hill Road upon the death of Ruth Strock. Based on all of the evidence we find that the fair market value of the Strock farm at its highest and best use for residential development is $1,000,000. Pursuant to Rule 1560, we must determine whether division of the farm can be made without prejudice to or spoiling the whole. Because there are two parties, each with an undivided one-half interest, the issue under Rule 1560(a) is whether the farm can be divided into two purparts of equal value. The Legislature, at 36 P.S. 1961, has provided: Unopened ways or streets on town plots Any street, lane or alley, laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons in case the same has not been opened to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out. In Kramer Appeal, 438 Pa. 498 (1970), the Supreme Court of Pennsylvania stated: The purpose of the statute is to "relieve land upon which streets have been laid out by the owners, but not used, from the servitude imposed: . . . The enactment is actually a statute of limitation applicable to any and all seeking to assert the public character of a street, be they the municipal authorities or the individual lot owners." Rahn v. Hess, 378 Pa. 264, 269, 106 A.2d 461 (1954). Dividing the Strock farm into two purparts of equal value at the highest and best use for residential development requires two points of access from Williams Grove Road to the tract that would border that road. Knepper Drive to the south cannot be -9- NO. 21-84-226 opened without the consent of the owners of the land in Country Estates on which the same has been, or will be, laid out. Whether such consent could be obtained is speculative. As Respondents argue in their brief, it is not known how affected owners might feel about creating a street along their properties that would allow traffic into a new subdivision containing many residential units. As to the other potential point of access to the north, where there is now an unpaved farm lane, which access would be over lands of a third party, there is no evidence that such use has been hostile to the point that it has ripened into prescription for a paved street into a residential development. See Orth v. Werkheiser, 305 Pa. Super. 576 (1982); Smith v. Fulkroad, 305 Pa. Super. 459 (1982). Whether street access from Williams Grove Road to a residential development can be obtained from the owner is speculative. Therefore, without having to consider the arguments of Respondents regarding the development costs as they would relate to the value of each tract if the farm was divided into two purparts, we find that it cannot be divided into two purparts of proportionate value at the highest and best use because there is insufficient evidence that there will be two required points of access to the tract that would border Williams Grove Road. Since that tract could not be developed for residential purposes without such access, a division of the Strock farm cannot be made without prejudice to or spoiling the whole. Thus, there can be no division under Rule 1560(a), or under subsections (b) or (c). Pa. Rule of Civil Procedure 1563(a) provides: -10- NO. 21-84-226 Except as otherwise provided in Subsection (b), property not capable of division without prejudice to or spoiling the whole shall be offered for private sale confined to the parties.4 Rule 1567 provides in part: No sale of the whole shall be confirmed unless the amount bid equals or exceeds the valuation of the whole fixed by the court. 4 Subsection (b) is not applicable here because no party owns a majority in value of the property. -11- NO. 21-84-226 For the foregoing reasons, the following interim order is entered. INTERIM ORDER OF COURT AND NOW, this day of March, 2007, finding that the Strock farm cannot be divided without prejudice to or spoiling the whole, and that the market value of the farm is $1,000,000. IT IS ORDERED: (1) A conference with counsel shall be conducted in chambers on Monday, April 2,2007, at 1 :30 p.m., to discuss: (a) Whether either party wishes to bid at least $1,000,000 for the farm at a private sale, and if so, what the terms of the bidding process should be. (b) If neither party wishes to submit a bid of at least $1,000,000 at a private sale, whether the court should order a public sale or a private sale not confined to the parties, and in each situation, the terms of such a sale and how such a sale should be accomplished. (2) Following the conference, an order replacing this interim order will be entered. By the Court, Edgar B. Bayley, J. -12- NO. 21-84-226 Richard E. Connell, Esquire For The Strock Family Trust, George N. Strock, individually and as trustee, Judy Hoch and Nancy Ryder Susann B. Morrison, Esquire F or Barry L. Strock Dale F. Shughart, Jr., Esquire For Rosalie Green :sal -13- BARRY L. STROCK, PETITIONER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION V. THE STROCK FAMILY TRUST, GEORGE N. STROCK, as co-trustee, GEORGE N. STROCK, individually, ROSALIE: A. GREEN, JUDY KAY HOCH, NANCY C. RYDER, and RUTH A. STROCK, RESPONDENTS NO. 21-84-226 IN RE: PARTITION OF REAL PROPERTY INTERIM ORDER OF COURT AND NOW, this day of March, 2007, finding that the Strock farm cannot be divided without prejudice to or spoiling the whole, and that the market value of the farm is $1,000,000. IT IS ORDERED: (1) A conference with counsel shall be conducted in chambers on Monday, April 2,2007, at 1 :30 p.m., to discuss: (a) Whether either party wishes to bid at least $1,000,000 for the farm at a private sale, and if so, what the terms of the bidding process should be. (b) If neither party wishes to submit a bid of at least $1,000,000 at a private sale, whether the court should order a public sale or a private sale not confined to the parties, and in each situation, the terms of such a sale and how such a sale should be accomplished. (2) Following the conference, an order replacing this interim order will be entered. NO. 21-84-226 By the Court, Edgar B. Bayley, J. Richard E. Connell, Esquire For The Strock Family Trust, George N. Strock, individually and as trustee, Judy Hoch and Nancy Ryder Susann B. Morrison, Esquire F or Barry L. Strock Dale F. Shughart, Jr., Esquire For Rosalie Green :sal -2-