K.L. Sain v. Twp. of Marshall & Markman Dev., LLC


Kathleen L. Sain, Deborah Belin,         :
Michel and Barbara Gaus, Donald          :
and Heather Gawne, Sherri Kellner,       :
Carol Lockhart, Jeremy Lockhart,         :
Timothy Lockhart, William Lockhart,      :
Andrea Lurier, John C. and Susan M.      :
Parran, John and Ellen Simons,           :
John and Jessica Smith, and              :
Charles and Linda Watson,                :
                   Appellants            :
             v.                          :
Township of Marshall and                 :   No. 834 C.D. 2020
Markman Development, LLC                 :   Argued: March 18, 2021



BY JUDGE FIZZANO CANNON                      FILED: April 22, 2021

             Kathleen L. Sain, Deborah Belin, Michel and Barbara Gaus, Donald
and Heather Gawne, Sherri Kellner, Carol Lockhart, Jeremy Lockhart, Timothy
Lockhart, William Lockhart, Andrea Lurier, John C. and Susan M. Parran, John and
Ellen Simons, John and Jessica Smith, and Charles and Linda Watson (collectively,
Objectors) appeal from an order of the Court of Common Pleas of Allegheny County
(trial court) that affirmed a decision of the Board of Supervisors of the Township of
Marshall (Township) that approved, with conditions, preliminary plans for a
proposed real estate development by Markman Development, LLC (Developer).
Order of Court, 7/27/20 (Tr. Ct. Order). Upon review, we affirm the trial court’s
order and deny Objectors’ application for relief entitled Appellants’ Application to
Dismiss Markman Development, LLC for Failure to Preserve Standing (Application
for Relief), filed on December 21, 2020.
                                  I. Background
             Developer received approval of its preliminary subdivision plans for a
residential development in the Township. Trial Court Opinion, 7/27/20 (Tr. Ct. Op.)
at 2. The proposed development consists of 131 residential units on about 243 acres
of land located in the Township’s Conservation Residential (CR) District.

Developer plans to

cluster the residences on a natural plateau on the otherwise hilly
property. Tr. Ct. Op. at 2-3. The residential area will be buffered from the rest of
the property by extensive stands of mature trees.

Id. at 3.

About 170 acres of the
property will be dedicated as permanent greenway. Township Board of Supervisors
Decision, 11/11/19 (Twp. Dec.) at 9.
             The subdivision is governed and authorized by Chapter 174 of the
Township’s Code of Ordinances, Subdivision and Land Development (SALDO),
and by Chapter 208 of the Township’s Code of Ordinances, Zoning (Zoning

Id. at 2-3.

             The Township Planning Commission reviewed Developer’s plans at a
public meeting at which some township residents, including Objectors, voiced
concerns about the proposed development.        Tr. Ct. Op. at 3.     The Planning
Commission voted to recommend approval of the plan.

Id. Thereafter, the

held two public meetings at which it heard public comments and concerns.


Id. The Township ultimately

approved Developer’s plans, subject to extensive
conditions. Id.; Twp. Dec. at 1-5.
               Objectors appealed the Township’s approval of the plans to the trial
court, which affirmed the Township’s decision and dismissed Objectors’ appeal
without taking additional evidence. See Tr. Ct. Op. at 3; Tr. Ct. Order. Objectors
then appealed to this Court.
                                           II. Issues
               On appeal,1 Objectors repeat the same arguments they asserted before
the trial court. They contend Developer’s plan violated the SALDO or the Zoning
Ordinance because the residential units and streets were not set back sufficiently
from primary and secondary conservation areas, the greenway would be transected
by an existing public road, and public access points to the greenway areas were not
proper or clearly marked. See generally Br. of Appellants at 10-29. Objectors,
additionally, request that Developer be dismissed from this appeal for failure to
comply with applicable rules for intervention as a party.

Id. at 29-30.

             A. General Compliance with Minimum Setback Distances
               Objectors first assert that Developer’s plan fails to comply with Section
174.302.D.2 of the SALDO, which provides:
               “Potential house sites shall be tentatively located along the
               proposed STREETS[.] House sites should generally be
               located not closer than 100 feet from PRIMARY
               CONSERVATION AREAS and 50 feet from
               SECONDARY CONSERVATION AREAS, taking into

         Where, as here, the trial court decided the appeal before it without taking additional
evidence, this Court’s review of a zoning appeal is limited to determining whether the municipality
abused its discretion or committed an error of law. Therres v. Zoning Hearing Bd. of Borough of
Rose Valley, 

947 A.2d 226

, 228 n.2 (Pa. Cmwlth. 2008) (citing Gall v. Zoning Hearing Bd. of
Upper Milford Twp., 

723 A.2d 758

(Pa. Cmwlth. 1999)).
            consideration the potential negative impacts of residential
            DEVELOPMENT on such areas as well as the potential
            positive benefits of such locations to provide attractive
            views and visual settings for residences.”

Twp. Dec. at 8 (quoting SALDO, § 174.302.D.3). According to Developer’s
summary data, 65% of the proposed house sites are at least 100 feet from primary
conservation areas, and 51% of the proposed house sites are at least 50 feet from
secondary conservation areas. Twp. Dec. at 8. Objectors contend that these
percentages do not show a general compliance with the applicable distance
requirements. We disagree.
             The Township rejected Objectors’ contention for several reasons. The
Township found the phrase “should generally be located” was not mandatory in
nature. Twp. Dec. at 8. The choice of the word “should,” which is aspirational,
instead of “shall,” which is mandatory, indicated that absolute compliance was not
required. Id.; accord Falkler v. Lower Windsor Twp. Zoning Hearing Bd., 

988 A.2d

, 768 (Pa. Cmwlth. 2010) (language in zoning ordinance that certificate to
continue nonconforming use “should be filed” within a year of the effective date of
ordinance amendments was permissive, not mandatory). The word “generally”
further connoted a standard that is not absolute. Twp. Dec. at 3. The Township
pointed out that the phrase “should generally be located” did not provide a
measurable objective standard.

The Township posited

that its reading of the setback provisions
comported with the SALDO’s objectives of flexibility and efficiency, creation of
greenway systems, and clustering of houses in less environmentally sensitive areas.
Twp. Dec. at 9. The Township concluded Developer’s plan for lot placement
provided the maximum distances from primary and secondary conservation areas
and lessened potential environmental impact.

Id. The Township observed:

               If [] Developer had chosen to pursue the four-acre
               minimum lot Country Properties option authorized by
               Section 208-1601.B.2 of the [Zoning Ordinance] instead
               of the Cluster Properties option it did here, it would not
               have been subject to the 50[-] and 100-foot conservation
               area setbacks at all, which would have likely resulted in
               the disturbance of substantially more environmentally
               sensitive areas.

Finally, the Township

determined its construction of the SALDO and
the Zoning Ordinance was supported by Section 603.1 of the Pennsylvania
Municipalities Planning Code2 (MPC), 53 P.S. § 10603.1, which provides that in
construing zoning restrictions, any doubt regarding the intended meaning of the
restrictive language must be construed in favor of the property owner and against
extending the restrictions. Twp. Dec. at 9.
               Objectors dispute the Township’s construction of the SALDO and the
Zoning Ordinance.         They insist that the only reasonable interpretation of the
provisions at issue is that each separate lot must be generally in compliance with the
setback requirements. Br. of Appellants at 15. Moreover, Objectors assert that a lot
plan where over one-third of the lots are within 100 feet of primary conservation
areas and nearly half are within 50 feet of secondary conservation areas cannot be
considered “generally” in compliance with even aspirational setback provisions.

at 14-15.

               This Court finds the Township’s analysis and construction of the
SALDO and Zoning Ordinance to be persuasive. The Township’s analysis serves
the overarching purpose of the Conservation Subdivision Design provision of the
Zoning Ordinance, “to provide a means for the logical and efficient

          Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
DEVELOPMENT within the . . . CR . . . ZONING DISTRICT[] while maintaining
the district’s natural character.”   Zoning Ordinance § 208-1601. The Zoning
Ordinance provides the following, sometimes competing, practical and aesthetic
objectives that must be balanced to further this stated purpose by allowing flexibility
in designing new subdivisions for cluster residences:

             1. To conserve open land . . . ;
             2. To provide greater Design flexibility and efficiency in
                the siting of services and infrastructure . . . ;
             3. To reduce erosion and sedimentation . . . ;
             4. To provide for a diversity of LOT sizes and
                BUILDING densities . . . ;
             5. To . . . conserve a variety of irreplaceable and
                environmentally sensitive resource lands including
                provisions for reasonable incentives to create a
                greenway system for the benefit of present and future
             6. To permit clustering of houses and STRUCTURES on
                less environmentally sensitive soils . . . ;
             7. To implement adopted . . . policies, as identified in the
                Marshall TOWNSHIP Comprehensive Plan;
             8. To protect AREAS of the TOWNSHIP with productive
                agriculture soils . . . by conserving BLOCKS of land
                large enough to allow for efficient FARM
             9. To create neighborhoods with direct visual access to
                open land, with amenities in the form of neighborhood
                greenway . . . ;
             10. To provide for the conservation and maintenance of
                 open land within the TOWNSHIP . . . ;

             11. To provide standards reflecting the varying
                 circumstances and interests of individual landowners
                 . . . ; and
             12. To conserve scenic views and elements . . . by
                 minimizing views of new DEVELOPMENT from
                 existing roads.

Id., § 208-1601.A. The

Township’s analysis demonstrates its consideration and
careful balancing of these objectives of the Zoning Ordinance.
             Similarly, the Township properly balanced Developer’s rights with
aesthetic concerns pursuant to the SALDO. Section 174-302.D of the SALDO,
governing land development application submission requirements, provides a four-
step design process for conservation subdivisions. Step 1 relates to greenway
delineation and allows for consideration of various factors, including designation of
“all   PRIMARY       CONSERVATION             AREAS    and   those    SECONDARY
CONSERVATION AREAS with the highest resource significance,” the Township’s
comprehensive plan, consultation with the Planning Commission concerning the
areas most suitable as greenway, and “practical considerations given to the tract’s
configuration, its context in relation to resource areas on adjoining and neighboring
properties, and the APPLICANT’S SUBDIVISION objectives . . . .” SALDO
§ 174.302.D.1.(b)-(d). The Township’s analysis properly balanced conservation of
resource areas and practical considerations.
             Balancing aesthetic issues with practical consideration of the
developer’s rights is essential to the Township’s exercise of its zoning power.
Although “a municipality may include consideration of aesthetic factors in the
exercise of its zoning powers,” the municipality may not deny authorization for a
use based solely on “the discretionary exercise of its subjective aesthetic judgment.”

White Advertising Metro, Inc. v. Zoning Hearing Bd., 

453 A.2d 29

, 35 (Pa. Cmwlth.
             Here, the Township’s interpretation of the SALDO and the Zoning
Ordinance comports with the directive of Section 603.1 of the MPC, in that it applies
a meaning of “should generally be located” that favors Developer as the property
owner and avoids increasing restrictions on development of the property. Further,
the Township has applied a reasonable and common-sense interpretation that
maximizes adherence to the conservation goals of the SALDO and Zoning
Ordinance while allowing reasonable development of the property in a manner that
will minimize the visibility and environmental impact of the development on the
surrounding area.
             We find particularly persuasive the Township’s observation that
Developer could have chosen a less restricted and more environmentally damaging
plan. See Twp. Dec. at 9. Presumably, if Objectors were to succeed in this challenge
to Developer’s current plan, a new plan could be presented for approval that could
take advantage of the less restrictive option, to the detriment of Objectors, other area
residents, and the local environment. As the Township explained, Developer could
have decided to build individual houses on four-acre minimum lots, an option
authorized by the Zoning Ordinance, instead of clustering the residences. Id.; see
Zoning Ordinance § 208-1601.B.2. Such a development plan would not have been
subject to the 50 and 100-foot conservation area setbacks and could have eliminated
the substantial greenway preserved under Developer’s current plan. Instead, the
Township has approved a plan that minimizes the effect of the development by
maintaining a majority of the property as greenway while screening the development
with dense stands of mature trees. This Court discerns no abuse of discretion or

error of law in the Township’s decision. See Blue Mt. Pres. Ass’n v. Twp. of Eldred,

867 A.2d 692

, 697 (Pa. Cmwlth. 2005) (“The land development process is a give
and take process allowing the modification and change of plans as they are reviewed
by the [Planning] Commission and [Township] Board.”); White Advert. Metro, Inc.
v. Zoning Hearing Bd., 

453 A.2d 29

, 34 (Pa. Cmwlth. 1982) (board may consider
factors other than those expressly set forth in zoning ordinance and “may review a
proposed use with regard to its general detrimental effect and adverse impact on the
welfare of the community . . . ”).
                           B. Proposed Road Placement
             Objectors next insist the proposed street plans do not comply with the
50- and 100-foot setbacks of the lot placement provision in the SALDO. Br. of
Appellant at 18-25. We reject Objectors’ argument that the housing setbacks apply
to streets in the development.
             As the Township correctly observes, the placement of streets and trails
in a development and the placement of house sites are governed by separate
provisions of the SALDO. See Twp. Dec. at 8 (quoting SALDO, § 174.302.D.3 (set
forth supra at 3-4)). Street placement is governed by the following provision:
             “A STREET plan shall be designed to provide vehicular
             access to each house, complying with the standards within
             this Article and bearing a logical relationship to
             topographic conditions. Impacts of the STREET plan on
             proposed GREENWAY LANDS shall be minimized,
             particularly with respect to crossing environmentally
             sensitive areas such as WETLANDS and traversing
             SLOPES exceeding 15%. STREET connections shall
             generally be encouraged to minimize the number of new
             CUL-DE-SACS to be maintained by the TOWNSHIP and
             to facilitate access to and from homes in different parts of
             the tract (and adjoining parcels).”

Twp. Dec. at 8 (quoting SALDO § 174-302.D.2). There is no mention of setbacks
of streets from primary and secondary conservation areas. Had the Township
intended to incorporate the housing setbacks into the street placement provision of
the SALDO, it could have done so, but it did not.
             Moreover, like the provision governing placement of houses, the street
provision of the SALDO is aspirational rather than mandatory. It requires a street
plan to minimize impact on greenway lands; it does not forbid any such impact. See
SALDO § 174-302.D.2. It “encourage[s]” street plans to minimize the number of
new cul-de-sacs that the Township must maintain, and to facilitate access to different
parts of the tract.

Id. Thus, the street

provision of the SALDO reflects a clear intent
by the Township to retain discretion and flexibility in balancing the concerns of
developers, homeowners, and the public in order to foster placement of streets so as
to provide appropriate access to residents of the development while minimizing the
maintenance costs to the Township and the environmental impact. See Blue 

867 A.2d at 697

. The Township did not abuse its discretion or err as a matter of law
in concluding the housing setback requirements are inapplicable to streets in the
                      C. Public Road Transecting Greenway
             Section 208-1607(c)(4) of the Zoning Ordinance requires that land
preserved as greenway “shall generally remain undivided . . . .” Twp. Dec. at 9
(quoting Zoning Ordinance § 208-1607(c)(4)). Here, Developer’s plans provide for
about 170 acres of greenway. The property is transected by Warrendale-Bayne
Road, the planned residences and about 110 acres of proposed greenway on one side
of the road and the remaining 60 acres of greenway on the other side of the road.



Objectors argue the plans fail to provide greenway that is “generally . . . undivided”
as mandated by the Zoning Ordinance. Br. of Appellants at 25-28.
               The Township explains that the Zoning Ordinance does not define the
terms “divided” and “undivided.” Twp. Dec. at 10. However, the Township states
it has in the past allowed greenway land to lie on both sides of a public road, and the
Township’s Zoning Board has approved subdivision plans in the past where a public
road transects a greenway area.

Id. Objectors do not

challenge this statement. The
Township further observes that “Section 208-1607(c)(4) [of the Zoning Ordinance]
does not prohibit greenway land from being [transected] by a public road,
particularly where, as here, that land has been considered one parcel for both real
estate tax and conveyance purposes.”

Id. (citing Bd. of

Comm’rs of Twp. of O’Hara
v. Hakim, 

339 A.2d 905

, 908 (Pa. Cmwlth. 1975) (single tract separated by
condemnation of easement for road was still one tract for zoning purposes));3 see
also In re Land Use Appeal of Cooke (Pa. Cmwlth., No. 1300 C.D. 2008, filed Mar.
31, 2009), slip op. at 6-7, 2009 Pa. Commw. Unpub. LEXIS 140, *8-9 (unreported)
(noting township’s acceptance of required greenway as a single lot although it was
traversed by entry road for development and, as a result, one part of transected lot
was less than minimum greenway tract size).4 Conversely, the Township notes that
not only is the 170-acre greenway that Developer proposes to set aside “the largest
in any subdivision considered or approved to date in the Township,” but even the 60
acres on the opposite side of the road from the rest of the property, on its own, is
larger than any other greenway in the Township but one. Twp. Dec. at 10. The

          We note that Hakim is not directly on point, in that the zoning provision at issue did not
relate to required greenway.
        This unreported decision is cited as persuasive pursuant to this Court’s Internal Operating
Procedures. See 210 Pa. Code § 69.414(a).
Township concludes that locating the proposed greenway on both sides of the road
is consistent with the SALDO and the Zoning Ordinance, as well as the preservation
goals and permissible recreational uses of the greenway.

Id. (citing SALDO Section

174-801 & Zoning Ordinance Section 208-2902 (greenway areas may be accessible
to residents of a development and/or to the Township)).
              We agree. Objectors offer no persuasive authority in support of their
assertion that greenway land transected by a public road is no longer undivided for
purposes of the SALDO or the Zoning Ordinance. The Township did not abuse its
discretion or commit an error of law in construing its ordinances to permit retained
greenway to be located such that it is transected by an existing public road, consistent
with its past construction of the applicable ordinances.
                                D. Access Point Slopes
              Objectors next argue that the Zoning Ordinance mandates pedestrian
access to the greenway land in the form of a centrally located access point, at least
35 feet in width, for every 15 lots in the development. Br. of Appellants at 29; See
Zoning Ordinance § 208-1607(D)(2)(a). Objectors contend Developer’s plan does
not clearly indicate the locations of all access points and that at least three points that
appear to be access points are in areas with 25% or greater slope, which Objectors
state is not accessible to pedestrians. Br. of Appellants at 29. Objectors also assert
there do not appear to be any access points on the 60 acres of greenway located
across Warrendale Bayne Road from the rest of the property.

Objectors cite no

authority for their implicit assertion that all access
areas must be precisely delineated in Developer’s preliminary plans. Among the
conditions attached to the Township’s approval of the preliminary plans is a
requirement that “Developer shall grant the Township pedestrian easements in the

greenway land, to be developed in consultation with the Township, to facilitate
future Township trail system connections.” Twp. Dec. at 3 (emphasis added). Thus,
both the Township and Developer apparently intend that at least some of the access
points for the greenway areas will be determined as appropriate once the Township
decides where it wants to place its trail system. Objectors offer no reason why such
a course of action is improper or fails to comply with the Zoning Ordinance. We
therefore conclude the Township did not commit an error of law or abuse its
discretion in approving Developer’s preliminary plans without precise designations
of all greenway access points.
             Further, although Objectors asserted that there were proposed access
points with slopes of 25%, the trial court observed that Objectors offered no evidence
that such a slope would not be accessible to pedestrians. Tr. Ct. Op. at 5. By
contrast, Developer offered expert testimony that the slopes at those access points
were not excessive and not so steep as to be detrimental to the general public.

Id. at

(citing Certified Record at 533). The Township did not abuse its discretion or
commit an error of law by accepting this unrebutted evidence.
                                  E. Intervention
             In their final argument, Objectors assert that Developer should be
dismissed as a party to this appeal because it failed to intervene properly. Br. of
Appellants at 29-30. Objectors filed the Application for Relief seeking Developer’s
dismissal. See Application for Relief, 12/21/20. By order dated January 29, 2021,
this Court directed resolution of the intervention issue along with the merits of this
appeal. Order of Ct., 1/29/21.
             Objectors do not dispute that as the owner of the property, Developer
was entitled to intervene as of right by filing a notice of intervention pursuant to

Section 1004-A of the MPC,5 53 P.S. §11004-A (2006). Objectors likewise do not
dispute that Developer’s counsel filed an entry of appearance in the trial court and
that Developer participated fully in the proceedings before the trial court. Objectors
argue, however, that Developer’s entry of appearance was inadequate to constitute
a notice of intervention. Br. of Appellants at 29-30. We discern no merit in
Objectors’ assertion.
                The trial court expressly recognized Developer as having intervened in
the action. The trial court’s caption on at least two interlocutory orders expressly
referred to Developer as “Intervenor.” See R.R. at 1470a & 1471a. The trial court’s
caption on both its opinion and its final order likewise designated Developer as
“Intervenor.” See Tr. Ct. Op. at 1; Tr. Ct. Order. The text of the trial court’s opinion
also referred to Developer as “Intervenor.” Tr. Ct. Op. at 2. Thus, it is clear that
Developer was a party in the trial court proceeding.6
                Having successfully intervened in the trial court, Developer did not
need to file a notice of intervention to be a party to the appeal in this Court:
                       All parties to the matter in the court from whose
                order the appeal is being taken shall be deemed parties in

           Added by the Act of December 21, 1988, P.L. 1339.
          Objectors contend they preserved the issue of Developer’s trial court intervention by
raising it at oral argument in the trial court. Application for Relief at 4, ¶ 9 (citing Reproduced
Record (R.R.) at 1576a-77a). Our review of the reproduced record revealed no challenge to
Developer’s intervention in the cited portion of oral argument. Several pages earlier in the
transcript, counsel for Objectors mentioned the absence of a formal notice of intervention. See
R.R. at 1570a-71a. However, the issue was not raised as a challenge to Developer’s intervention.
Counsel twice stated the matter was raised purely as “a housekeeping matter.”

Id. Counsel,
moreover, expressly

stated Objectors had “no objection” to Developer’s intervention and indeed
“would stipulate” to it.

Id. We find this

passing mention of the issue in an oral argument was
insufficient to preserve it for appeal. Accord Livingston v. Greyhound Lines, 

208 A.3d 1122

, 1136
(Pa. Super. 2019) (“Statements by a party’s counsel that the party has no objection to a ruling
constitute an affirmative waiver that bars the party from raising that issue in post-trial motions or
on appeal, even if the party had previously fully raised and preserved the issue.”).
             the appellate court, unless the appellant shall notify the
             prothonotary of the appellate court of the belief of the
             appellant that one or more of the parties below have no
             interest in the outcome of the appeal . . . .

Pa. R.A.P. 908 (emphasis added). Here, Objectors cannot and do not contend that
Developer has no interest in the outcome of this appeal. Having been a party in the
trial court, Developer is deemed a party to the appeal. Therefore, the Application
for Relief seeking dismissal of Developer as a party is denied.
                                  IV. Conclusion
             Based on the foregoing discussion, the trial court’s order is affirmed
and the Application for Relief is denied.

                                       CHRISTINE FIZZANO CANNON, Judge


Kathleen L. Sain, Deborah Belin,        :
Michel and Barbara Gaus, Donald         :
and Heather Gawne, Sherri Kellner,      :
Carol Lockhart, Jeremy Lockhart,        :
Timothy Lockhart, William Lockhart,     :
Andrea Lurier, John C. and Susan M.     :
Parran, John and Ellen Simons,          :
John and Jessica Smith, and             :
Charles and Linda Watson,               :
                   Appellants           :
            v.                          :
Township of Marshall and                :   No. 834 C.D. 2020
Markman Development, LLC                :


            AND NOW, this 22nd day of April, 2021, the order of the Court of
Common Pleas of Allegheny County is AFFIRMED.
            Appellants’ Application to Dismiss Markman Development, LLC for
Failure to Preserve Standing is DENIED.

                                      CHRISTINE FIZZANO CANNON, Judge

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