         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Dambman and                       :
Jayne Dambman, Husband and Wife;         :
Casimir Seweryn and Jennifer Seweryn,    :
Husband and Wife; Stephen Chellew;       :
Ann Morton; Enid Maleeff;                :
Robert Kuneck and Danielle Kuneck,       :
Husband and Wife; Emmett Miller          :
and Judy Mesirov, Husband and Wife;      :
Ryan McCleary and Mary McCleary;         :
William Cook and Sandy Hirsch;           :
Michael Gordon and Jaime Gordon,         :
Husband and Wife;                        :
David Kannerstein and Winnie Lanoix,     :
Husband and Wife; Andrew Metzger;        :
Susan Ginsberg; Seymour Prystowsky       :
and Cochava Prystowsky, Husband          :
and Wife; Eleanor Klatt; Paul Gauvreau   :
and Martha Gauvreau, Husband and Wife;   :
Margaret Wrightson; John Dempsey         :
and Carrie Dempsey, Husband and Wife;    :
Susan Jacobs; Joseph Kim;                :
Thomas Ferrara and Mary Ferrara,         :
Husband and Wife,                        :
                  Appellants             :
                                         :
           v.                            :   No. 1883 C.D. 2016
                                         :   Argued: May 1, 2017
Board of Supervisors of Whitemarsh       :
Township, The Hill at Whitemarsh         :
and The Whitemarsh Foundation            :

BEFORE:    HONORABLE MARY HANNAH LEAVITT, President Judge
           HONORABLE RENÉE COHN JUBELIRER, Judge
           HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                           FILED: October 6, 2017
               Robert Dambman and 32 other residents of Whitemarsh Township
(collectively, Objectors) appeal an order of the Court of Common Pleas of
Montgomery County (trial court) upholding the Whitemarsh Township Board of
Supervisors’ approval of a preliminary and final land development plan filed by
intervenor The Hill at Whitemarsh (The Hill).1 Objectors argue that the Board of
Supervisors erred in approving The Hill’s plan because it did not first obtain zoning
relief for a temporary construction access road.                      Because the Township’s
Subdivision and Land Development Ordinance2 did not require The Hill to secure a
zoning permit in advance of filing its land development plan, we affirm.
               The Hill operates a continuing care retirement community in
Whitemarsh Township. Under its conditional preliminary land development plan
approved in 2004, the retirement community was to be completed in two phases.
Phase One was completed in 2007 with 86 single-family residences, 179 apartments
and 80 health care units. Phase One currently houses approximately 350 senior
citizen residents. Notes of Testimony (N.T.), 5/26/2016, at 3; Reproduced Record
at 135a (R.R. __). The planned Phase Two of development will expand the
retirement community to include additional senior residences, a community center
and an upgraded nursing care unit.3 N.T., 5/26/2016, at 5-6; R.R. 136a.




1
  Whitemarsh Township is not participating in this appeal but joins in the brief and oral argument
of The Hill.
2
  SUBDIVISION AND LAND DEVELOPMENT ORDINANCE OF WHITEMARSH TOWNSHIP (SALDO). The
SALDO can be found at Chapter 105 of the Code of the Township of Whitemarsh, available at
http://ecode360.com/11706746 (last visited September 5, 2017).
3
  In the original preliminary plan, The Hill planned to build single-family residential villas in Phase
2. It now intends to build five multi-family buildings instead. N.T., 5/26/2016, at 5-6; R.R. 136a.
              On November 12, 2015, The Hill filed a land development application
titled “Amended Preliminary Final Phase 2” with the Board of Supervisors seeking
final approval for Phase 2 of the retirement community. The application described
a road that construction vehicles would use to access The Hill’s property during
construction of Phase 2. The location of this access road is the subject of Objectors’
appeal.
              The Hill’s application stated that it had been granted a temporary
construction easement by an adjoining property owner, the Whitemarsh Foundation
(Foundation), whose land abuts the property where The Hill will do the Phase 2
construction. The Foundation’s property is subject to a conservation easement set
forth in an agreement titled “Declaration of Conservation and Open Space
Easements, Covenants and Restrictions” (Declaration).4 The Declaration provides
that the Foundation will grant a temporary construction easement to The Hill in
exchange for The Hill granting the Foundation an easement across its property for a
trail corridor between The Foundation’s property and the property of a neighboring
school district.5

4
  The Declaration was entered into in 2008 by the Colonial School District, Whitemarsh Township,
Montgomery County, and the Foundation. Declaration at 1; R.R. 7a.
5
  The Declaration provides:
       (g) Temporary Construction Access Easement.
       Provided the Hill at Whitemarsh (“Hill”) has granted a permanent easement for a
       trail corridor between the Property and property owned by the District (at no cost
       to the Taxing Bodies), the Foundation shall have the right to grant a temporary
       construction access easement of no longer than six (6) months or such longer period
       as permitted by the Review Committee following the date the first occupancy
       permits are issued to Hill with respect to Phase II, to be located at such places on
       the Property which may include a portion of Tract A or the Township Residual
       Area (and which may not include any portion of Tract C, the


                                               2
               Originally, The Hill proposed to place its temporary construction access
road over an existing service road on the Foundation’s property. That service road
lies approximately 15 feet from several of the Objectors’ rear property lines. In
response to Objectors’ concerns, The Hill’s application moved the temporary access
road 35 feet further away from their property lines and closer to the interior of the
Foundation’s property.6
               On March 22, 2016, the Township Planning Commission held a
meeting on The Hill’s development plan. Representatives of the Foundation, The
Hill, and Objectors were present at the meeting, and the minutes reflect that those in
attendance discussed the location of the temporary access road. The Planning


        Wetland/Environmental Area and/or the Student Garden Area), as shall be
        approved by the Review Committee, after due consideration of the interests of
        neighbors, whatever other uses to which the Field Areas are then being put, and the
        importance of avoiding permanent environmental damage. In the event the grant
        of the temporary construction access easement contemplated hereby shall
        materially impact or impede the free and unrestricted use of any of the easements
        and easement areas provided for herein, then prior and as a condition to the grant
        of a temporary construction access easement as contemplated hereby, the
        Foundation shall grant to the Taxing Bodies easements for alternate Trails and
        parking areas, as applicable, providing similar access and opportunities to cross the
        Property at approximately the same locations as the Trails being displaced, upon
        such terms and conditions as are consistent herewith and are reasonably acceptable
        to the Review Committee acting unanimously. In the event Tract A shall be
        conveyed to the Township as contemplated herein, upon receiving and during the
        periods set forth in a written request from the Foundation, the Township shall grant
        the temporary construction access easement across Tract A as provided above. The
        location of the temporary construction access easement provided for herein may be
        relocated on the Property upon the approval of the Review Committee.
Declaration 2.02(g); R.R. 13a-14a.
6
  The Foundation explained that The Hill’s proposed location for the temporary construction access
road, setting it back 35 feet more than previously contemplated, was as far into the Foundation’s
property as the road could be located without violating terms of the Declaration. Planning
Commission Minutes, 3/22/2016, at 2; R.R. 131a.
                                                3
Commission determined that it lacked jurisdiction over the access road’s location.
Planning Commission Minutes, 3/22/2016, at 2; R.R. 131a. At the conclusion of the
meeting, the Commissioners unanimously recommended that the Board of
Supervisors approve The Hill’s application.
               On May 26, 2016, the Board of Supervisors convened a meeting to
consider whether to approve Phase 2 of The Hill’s project. The Hill’s representatives
made a presentation in support of the application and offered several exhibits. One
exhibit was a letter to The Hill from the Township’s Director of Planning and
Zoning, who is also a zoning officer for the Township, stating that it was “a review
of the Zoning Ordinance Compliance issues” for The Hill’s Phase 2 construction
plans. Regarding the temporary construction access road, the letter stated:

               The plans show a proposed “temporary construction access road”
               extending through the adjacent property owned by [the
               Foundation]. The plans cannot be approved until all structures
               and/or uses for the lot(s) are located entirely within the property
               boundaries, or easements are established to allow these features
               to be located as shown.

R.R. 175a (emphasis added).
               At the conclusion of The Hill’s presentation, several Objectors objected
to the location of the temporary construction access road. They asserted that the
access road should be sited further away from Objectors’ rear property lines.7



7
 Objectors’ testimony revolved largely around a Transportation Impact Study Supplement (Impact
Study) prepared by The Hill’s engineer. The Impact Study listed seven possible access road
options. R.R. 67a-86a. It recommended Access Alignment E, which is the route currently
proposed in The Hill’s application that is offset 35 feet from the existing service road. The Impact
Study stated:


                                                 4
               At the conclusion of the meeting, the Board of Supervisors adopted a
resolution approving the preliminary and final land development plan subject to
numerous conditions, including compliance with the comments of the Township’s
Director of Planning and Zoning in his zoning ordinance compliance review letter
to The Hill. R.R. 175a.8 With respect to the temporary construction access road, the
resolution listed ten conditions for approval.9

        Based on the analysis of the alternative locations as well as the estimated
        construction traffic expected to use the construction access, Alignment E (Offset to
        Existing Service Road) is the recommended alternative. It is the shortest access
        with the least impact to the smallest number of residents[.] This alternate reduces
        impacts and provides an increased degree of safety to the neighbors along Fountain
        Green Road by offsetting the existing service drive approximately 35-feet from the
        western property line; it limits impacts to the farm and pasture operations as much
        as possible; and it will provide a PennDOT compliant driveway configuration with
        Flourtown Road that will adequately accommodate construction vehicle turning
        maneuvers. This access will also keep construction related traffic to/from the site
        separate from traffic on Fountain Green Road, Pheasant Lane and Fox Hound Drive
        and it will therefore have no impact on emergency access along these streets.
        Additionally, it is intended that the temporary construction access becomes a
        permanent trail easement for use by the public. The location of Alignment E would
        maximize the length of the pedestrian trail system while still providing separation
        from the adjacent properties.
Impact Study at 8; R.R. 75a. Objectors argue that The Hill should use one of the alternative routes.
8
  The resolution stated, inter alia:
        [T]he Plan is hereby granted Conditional Preliminary and Final Land Development
        Approval subject to the satisfaction of the following conditions by [The Hill]:
                                                 ***
        2. Compliance with all comments as outlined in the Zoning Ordinance Compliance
        Review of S/LD #03-13 dated March 16, 2016, prepared by Charles L. Guttenplan,
        AICP, Whitemarsh Township Director of Planning and Zoning/Zoning Officer….
Resolution at 1; R.R. 165a.
9
  The conditions require The Hill to, inter alia, (1) offer to install reasonable temporary
landscaping buffers between Objectors’ rear property lines and the temporary access road; (2) erect
a six-foot high fence between Objectors’ rear property lines and the temporary access road; (3)
offer Objectors the opportunity to have a vibration monitoring baseline established, free of cost;


                                                 5
              On June 24, 2016, Objectors filed a land use appeal with the trial court.
They argued that the Board of Supervisors erred in approving The Hill’s final plan
because it had not first secured the necessary zoning permit for the temporary
construction access road, which is not a use permitted in the applicable residential
zoning district. On October 20, 2016, following oral argument, the trial court
affirmed the decision of the Board of Supervisors.
              In support of its order, the trial court issued an opinion that explained:

              None of the [Objectors] or their counsel expressed any objection
              that the temporary road or its proposed use violated any zoning
              regulations. Because the [Objectors] failed to raise the instant
              zoning claims before the [] Board [of Supervisors] during the
              land development approval process, these zoning claims have
              been waived.

Trial Court Opinion, 1/13/2017, at 10. Despite finding Objectors’ zoning challenge
waived, the trial court addressed the merits of their appeal. The trial court concluded
that the Township’s SALDO does not require that a zoning permit be secured prior
to approval of an application for land development. Accordingly, the trial court did
not undertake an analysis of the Township’s zoning ordinance.10                 On November
10, 2016, Objectors appealed to this Court.




and (4) limit the temporary access road’s hours of operation. Board Resolution at 4-5; R.R. 168a-
69a.
10
   WHITEMARSH TOWNSHIP ZONING ORDINANCE OF 1957 (Zoning Ordinance). The Zoning
Ordinance can be found at Chapter 116 of the Code of the Township of Whitemarsh, available at
http://ecode360.com/11708888 (last visited September 5, 2017).


                                               6
               On appeal,11 Objectors raise several issues. First, they contend that the
trial court erred in holding that they waived their claim that the temporary
construction access road violated the Zoning Ordinance. Second, on the merits,
Objectors maintain that under the Pennsylvania Municipalities Planning Code
(MPC)12 and the Zoning Ordinance, The Hill was required to obtain zoning relief for
the temporary construction access road before it sought approval of its land
development plan. Zoning relief was required because: (1) the temporary
construction access road is a “use” under the Zoning Ordinance; and (2) the
Foundation’s property is located in the “AAA Residential District,”13 where a
temporary construction access road is not a permitted use. Objectors contend the
Board of Supervisors exceeded its authority by approving The Hill’s land
development plan before The Hill secured the necessary zoning relief.

11
   “In a land use appeal, where the trial court does not take additional evidence, this Court’s scope
of review is limited to determining whether the governing body committed an error of law or an
abuse of discretion.” Residents Against Matrix v. Lower Makefield Township, 845 A.2d 908, 910
(Pa. Cmwlth. 2004).
12
   Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
13
   The Zoning Ordinance permits the following uses in the AAA Residential District:
         A. One single-family detached dwelling.
         B. Agriculture or horticulture, except the commercial keeping or handling of farm
         stock or poultry and except commercial greenhouses or establishments for sale of
         farm or horticulture products.
         C. Any of the following purposes when authorized as a special exception:
                (1) Public utility facility, provided that the exterior architectural
                design shall be of a residential character in conformity with all the
                regulations of the district and shall at no time be used for the storage
                of equipment or vehicles or other commercial purposes.
                (2) Passenger station for public transportation.
         D. An accessory use on the same lot with and customarily incidental to any
         permitted use, including a home occupation.
ZONING ORDINANCE §116-35.
                                                 7
                The Hill responds that Objectors’ failure to raise their zoning claim
before the Board of Supervisors resulted in waiver of that issue. But even if the issue
were not waived, The Hill contends that Objectors’ argument fails on the merits.
The temporary construction access road is not a “use” as defined in the Zoning
Ordinance, and a zoning permit is not required for a temporary construction
easement between two adjacent landowners.
                We begin with a review of the relevant law.         The MPC treats
subdivision and land development separately from zoning. Article V of the MPC
grants municipalities the authority to “regulate subdivisions and land development
within the municipality by enacting a subdivision and land development ordinance.”
Section 501 of the MPC, 53 P.S. §10501. Article VI of the MPC governs zoning
and grants a municipality’s governing body the power to “enact, amend and repeal
zoning ordinances….” Section 601 of the MPC, 53 P.S. §10601.
                Pursuant to its authority under the MPC, Whitemarsh Township
enacted its SALDO to “regulate and control the subdivision and development of land
within Whitemarsh Township[.]”             SALDO §105-2.    The SALDO grants the
Township’s Board of Supervisors exclusive jurisdiction to approve land
development applications. SALDO §105-6. Likewise, Whitemarsh Township
enacted the Zoning Ordinance to govern zoning matters. Pursuant to the MPC and
the Zoning Ordinance, the Township’s zoning hearing board has exclusive
jurisdiction to hear and render final adjudications in “appeals from the determination
of the zoning officer, including but not limited to, the granting or denying of any
permit.”       Section 909.1 of the MPC, 53 P.S. §10909.1;14 see also ZONING


14
     Added by the Act of December 21, 1988, P.L. 1329.
                                               8
ORDINANCE §116-216. Accordingly, a developer must proceed on dual tracks. It
must obtain the Township’s approval of its land development plan, and it must obtain
a zoning permit for its project.
             Objectors’ appeal concerns the timing of these dual tracks.
Specifically, Objectors argue that zoning approval is required prior to the Board of
Supervisors’ approval of a final land development plan. This question is governed
by the terms of a municipality’s SALDO. See Rickert v. Latimore Township, 960
A.2d 912, 920 (Pa. Cmwlth. 2008) (holding that the order of land development and
zoning applications is determined by the applicable subdivision and land
development plan ordinance). In Borough of Jenkintown v. Board of Commissioners
of Abington Township, 858 A.2d 136 (Pa. Cmwlth. 2004), for example, this Court
held that the board of commissioners erred in approving a final land development
plan without including a condition for zoning approval because the township’s
SALDO required the zoning officer to approve the plan before the governing body
could approve it. By contrast, in Rickert, 960 A.2d at 920, this Court held that the
board of supervisors erred in disapproving a land development plan for zoning
reasons because the township’s SALDO did not require an applicant to receive
zoning approval before the board of supervisors granted final approval of the plan.
             Here, as in Rickert, the Township’s SALDO does not require that
zoning approvals precede approval of the final land development plan. Section 105-
12 of the SALDO outlines the general procedures for approval of subdivision and
land development plans. It states, in relevant part:

             E. The applicant is encouraged to meet informally with the
             Township Planner and the Planning Commission to obtain


                                          9
              information regarding zoning and subdivision requirements and
              development alternatives prior to the initial submission.

SALDO §105-12(E) (emphasis added). During the preliminary and final plan
stages, the SALDO requires that the zoning officer receive copies of the plans for
review. Id. at §§105-14(D)(4)(e), 105-15(D)(5)(c). The zoning officer is then
required to consider the applicant’s submission and make recommendations to the
Township’s manager.         Id. at §§105-14(D)(7), 105-15(D)(7).             The Township’s
SALDO is silent, however, on when an applicant must obtain zoning permits from
the zoning officer or, if necessary, variances or special exceptions. Stated otherwise,
the SALDO requires the zoning officer to review development plans and make
recommendations, but that is all. This does not equate to a mandate that an applicant
secure zoning relief before the plan can be approved by the Board of Supervisors.15
See Rickert, 960 A.2d at 920 (“mildly worded advice in the SALDO did not
authorize the Supervisors to weave zoning requirements into the final plan review
process.”).



15
  With the submission of the final plan, the Township’s SALDO requires that the following be
included:
       (d) Zoning requirements, including:
              [1] Applicable district and district boundaries.
              [2] Maximum density permitted, if applicable.
              [3] Lot size and yard requirements.
                 [4] Applicable open space and impervious ground coverage ratios.
                 [5] Any variances or special exceptions granted.
SALDO §105-22(B)(1)(d)[1]-[5]. Importantly, the zoning requirements for a proposed
development must be identified in the final plan, as well as any previously granted variances and
special exceptions. Nowhere in the SALDO is approval of the final plan contingent on the
applicant first securing a zoning permit or other relief.


                                               10
               Objectors appeal the Board of Supervisors’ approval of The Hill’s final
plan because they disagree with the zoning officer’s compliance review letter.16
However, under the SALDO, The Hill was not required to secure a zoning permit in
advance of the Board of Supervisors’ action on its development plan. Because
Objectors present no other grounds for reversal, we affirm the trial court’s order
upholding the Board of Supervisors’ approval of The Hill’s final plan.
               Based upon this conclusion, the parties remaining arguments, which
concern the temporary access road’s compliance with the Township’s Zoning
Ordinance, are outside the scope of this appeal.17 For these reasons, we affirm the
trial court’s order upholding the Board of Supervisors’ approval of The Hill’s final
land development plan.
                                          ______________________________________
                                          MARY HANNAH LEAVITT, President Judge




16
   We are cognizant that the Board of Supervisors approved The Hill’s plan on the condition that
it comply with the zoning officer’s “comments” in the zoning compliance review letter. Resolution
at 1; R.R. 165a. If permits are issued in accordance with the zoning officer’s comments, Objectors
may challenge those permits in an appeal to the zoning hearing board.
17
   The trial court lacked jurisdiction to decide that Objectors’ zoning claims were waived. See Trial
Court Opinion, 1/13/2017, at 10. As explained above, Objectors must raise any zoning concerns
they have in an appeal to the zoning hearing board from a decision by the zoning officer to issue a
permit or grant other zoning relief. See Borough of Jenkintown, 858 A.2d at 142.
                                                11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert Dambman and                       :
Jayne Dambman, Husband and Wife;         :
Casimir Seweryn and Jennifer Seweryn,    :
Husband and Wife; Stephen Chellew;       :
Ann Morton; Enid Maleeff;                :
Robert Kuneck and Danielle Kuneck,       :
Husband and Wife; Emmett Miller          :
and Judy Mesirov, Husband and Wife;      :
Ryan McCleary and Mary McCleary;         :
William Cook and Sandy Hirsch;           :
Michael Gordon and Jaime Gordon,         :
Husband and Wife;                        :
David Kannerstein and Winnie Lanoix,     :
Husband and Wife; Andrew Metzger;        :
Susan Ginsberg; Seymour Prystowsky       :
and Cochava Prystowsky, Husband          :
and Wife; Eleanor Klatt; Paul Gauvreau   :
and Martha Gauvreau, Husband and Wife;   :
Margaret Wrightson; John Dempsey         :
and Carrie Dempsey, Husband and Wife;    :
Susan Jacobs; Joseph Kim;                :
Thomas Ferrara and Mary Ferrara,         :
Husband and Wife,                        :
                  Appellants             :
                                         :
           v.                            :   No. 1883 C.D. 2016
                                         :
Board of Supervisors of Whitemarsh       :
Township, The Hill at Whitemarsh         :
and The Whitemarsh Foundation            :
                                 ORDER
           AND NOW, this 6th day of October, 2017, the order of the Court of
Common Pleas of Montgomery County dated October 20, 2016 in the above-
captioned matter is AFFIRMED.
                                ______________________________________
                                MARY HANNAH LEAVITT, President Judge
