IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

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 
2

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. Id. 

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 

Ordinance). 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

Township held two public meetings at which it heard public comments and concerns. 
3

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.

III. Discussion

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 

1 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)).
4

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 

764, 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. Id. 

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: 
5

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.

Id. 

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. Id.

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 

2 Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 – 11202.
6

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 

residents;

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 

OPERATIONS;

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 . . . ;
7

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 fourstep 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.” 
8

White Advertising Metro, Inc. v. Zoning Hearing Bd., 453 A.2d 29, 35 (Pa. Cmwlth. 

1982). 

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 
9

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).”
10

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 Mt., 

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 

development.

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. Id. 
11

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 

3 We note that Hakim is not directly on point, in that the zoning provision at issue did not 

relate to required greenway.

4 This unreported decision is cited as persuasive pursuant to this Court’s Internal Operating 

Procedures. See 210 Pa. Code § 69.414(a).
12

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. Id.

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 
13

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 

6 (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 
14

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 

5 Added by the Act of December 21, 1988, P.L. 1339.

6 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.”).
15

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
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

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 :

O R D E R

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