       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lake MacLeod Homeowners,                :
Association, Inc., Jonathan Iams,       :
John and Sujata Donahue, AJ and         :
Deanna Jugan, Don and Alycia            :
Lamparski, Sherwood and Shawna          :
Johnson, Jim and Joyce Hensler,         :
Jason and Danielle Grilli, Gregory      :
and Lora Rich, Adan and Jodi Kanter,    :
Matthew Lydic, Sandeep and Shaifali     :
Sharma, Stephanie Novosel, Todd and     :
Donna White, Richard and Melinda        :   No. 1247 C.D. 2017
Hoyland, Vince Lattari and Rebeccah     :   Argued: February 6, 2018
Hoffman, Neil and Nicole Walker,        :
Michael Duckworth and Tracy Howe,       :
Jeff and Allison Romano, Doug and       :
Diane Murray,                           :
                          Appellants    :
                                        :
            v.                          :
                                        :
Pine Township Board of Supervisors      :
Cavalier Land Partners, LP              :

BEFORE:     HONORABLE ROBERT SIMPSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE SIMPSON                        FILED: March 12, 2018


            This appeal concerns a large, complex development and raises technical
compliance issues. In particular, the Lake MacLeod Homeowners Association and
numerous individual landowners1 (collectively, Objectors) challenge an order of the
Court of Common Pleas of Allegheny County (trial court) that affirmed decisions of
the Pine Township Board of Supervisors (Supervisors) granting Cavalier Land
Partners, LP’s (Applicant) applications seeking zoning and land development
approvals for its proposed mixed residential use development. Primarily at issue in
this appeal is the Supervisors’ decision to grant Applicant’s requests for waivers
from certain requirements set forth in the Township of Pine Zoning Ordinance
(zoning ordinance) and the Township of Pine Subdivision and Land Development
Regulations (SALDO). Because we agree with Objectors that the Supervisors erred
in granting waivers from the zoning ordinance and the SALDO, we reverse.


                                     I. Background
              In March 2016, Applicant submitted an application and plan for
preliminary subdivision and land development approval (Plan).                 Specifically,
Applicant proposes to construct a 244-lot mixed residential use development,2
(known as Laurel Grove) on two parcels consisting of approximately 85 acres
located near Warrendale Road and Babcock Boulevard in Wexford (subject
property). Additionally, Applicant sought several waivers, one from the zoning




       1
         The individual landowners are Jonathan Iams, John and Sujata Donahue, AJ and Deanna
Jugan, Don and Alycia Lamparski, Sherwood and Shawna Johnson, Jim and Joyce Hensler, Jason
and Danielle Grilli, Gregory and Lora Rich, Adan and Jodi Kanter, Matthew Lydic, Sandeep and
Shaifali Sharma, Stephanie Novosel, Todd and Donna White, Richard and Melinda Hoyland,
Vince Lattari and Rebeccah Hoffman, Neil and Nicole Walker, Michael Duckworth and Tracy
Howe, Jeff and Allison Romano, and Doug and Diane Murray.
       2
       The proposed mixed-use development consists of patio homes, single-family homes, and
townhomes.



                                             2
ordinance, two from the SALDO, and one from the Township of Pine Grading,
Excavating and Fill, and Retaining Wall Ordinance (excavation and fill ordinance).


                 Applicant also filed a conditional use application seeking approval to
construct “patio homes”3 as part of its proposed residential development, which are
permitted by conditional use in Pine Township’s (Township) R-3 Neighborhood
Residence District, in which the subject property lies.4


                 In May 2016, the Township Planning Commission (Planning
Commission) recommended preliminary approval of Applicant’s Plan and
conditional use application. A hearing on the conditional use application ensued
before the Supervisors.


                 After the hearing, the Supervisors granted Applicant’s conditional use
application subject to three attached conditions.                  In their decision granting
Applicant’s conditional use application, the Supervisors explained that the zoning
ordinance authorizes the Supervisors to allow “patio home” dwellings in the R-3
district by conditional use upon compliance with the specific requirements in Section
84-74 of the zoning ordinance, and the general requirements applicable to all
conditional uses found in Section 84-137 of the zoning ordinance. The Supervisors
determined Applicant satisfied all of the specific and general conditional use criteria.



       3
           A “patio home” is: “A single-family dwelling, which includes a master bedroom suite on
the first (ground) floor, along with the cooking, eating, and living areas. Patio homes shall have
an attached garage of sufficient size for two vehicles.” Section 84-10 of the zoning ordinance.
       4
           Single-family homes are permitted by right in the R-3 district.

                                                  3
             The Supervisors also found that Applicant requested waivers from three
requirements. Specifically, Applicant sought waivers from: (1) Section 48-18(A) of
the excavation and fill ordinance (relating to “Filling standards”); (2) Section 78-
39(K) of the SALDO (relating to requirements for streets); and, (3) Section 84-
124(A)(1) of the zoning ordinance (“Steep slope controls”).


             The Supervisors determined Applicant was entitled to waivers from
each of these three provisions, and they made corresponding findings supporting the
grant of each waiver request. As detailed more fully below, the Supervisors found
Applicant’s requested waivers were justified by the physical conditions of the
subject property, which were of sufficient character or uniqueness to support the
requested waivers. Further, the Supervisors explained that the grant of the requested
waivers was subject to certain attached conditions.


             The Supervisors stated that, pursuant to Sections 84-137(C)(1) and
(D)(4)(a) of the zoning ordinance, they could condition the grant of a conditional
use application on such other conditions as they deemed necessary to implement the
purposes of the zoning ordinance. Here, the Supervisors found Applicant proposed
to effectively mitigate any potential unnecessary environmental disruptions
attendant to the proposed use on the subject property through the specifications
contained in the application, and any such disruptions would be minimized and
controlled by other state, county, and local regulations that applied to the proposed
development.




                                         4
             The Supervisors attached the following three conditions to the grant of
the conditional use: (1) Applicant’s strict compliance with all of the
development/design specifications contained in the development plans submitted in
conjunction with the application and with Applicant’s associated application for
subdivision and land development approval; (2) Applicant’s adherence to the
proposed additional stormwater management measures set forth in detail in
Applicant’s engineer’s correspondence; and, (3) Applicant’s acceptance of, and
strict ongoing compliance with, all conditions the Township imposed in its approval
of Applicant’s separate application for subdivision and land development.


             Based on these determinations, the Supervisors concluded Applicant
satisfied all applicable standards relating to the requested conditional use. Thus,
they granted conditional use approval for Applicant’s proposed patio home
dwellings on the subject property subject to the attached conditions.


             On the same date that they granted Applicant’s conditional use
application, the Supervisors granted preliminary approval of Applicant’s Plan.
Objectors appealed both the grant of the conditional use and the preliminary Plan
approval to the trial court.


             Thereafter, the Planning Commission recommended final approval of
Phase I of the Plan. Ultimately, the Supervisors granted final approval of Phase I of
the Plan, subject to six conditions. Objectors appealed the Supervisors’ grant of final
Plan approval of Phase I of the Plan to the trial court. The trial court consolidated
Objectors’ appeals.



                                          5
               Ultimately, without taking additional evidence, the trial court affirmed
the Supervisors’ grant of conditional use and preliminary and final land development
approval as well as the grant of the requested waivers. This appeal by Objectors
followed.


                                            II. Issues
               On appeal,5 Objectors argue the Supervisors erred in granting
Applicant’s requests for conditional use and preliminary and final land development
approval where: (1) the modification to waive the prohibition on the disturbance of
steep slopes greater than 40% was never presented to the Planning Commission or
approved by the Pine Township Engineer (Township Engineer) as required by the
zoning ordinance; and, (2) the modification to waive the SALDO’s restrictions that
no more than 3 dwelling units may be served by a private street and that private street
right-of-ways may not be less than 50-feet in width, which has the effect of
increasing the stormwater runoff, and which was granted solely for aesthetic reasons,
was improper.


                                III. Discussion
           A. Waiver from Zoning Ordinance’s Steep Slope Restrictions
                                1. Contentions



       5
          Generally, where the trial court takes no additional evidence, appellate review in a land
development appeal is limited to determining whether the local governing body committed an error
of law or an abuse of discretion. In re Appeal of AMA/Am. Mktg. Ass’n, Inc., 142 A.3d 923 (Pa.
Cmwlth. 2016).
        In addition, where, as here, the trial court did not take additional evidence, our review is
limited to determining whether the Supervisors abused their discretion or committed an error of
law in granting the conditional use application. Id.

                                                 6
             Objectors first argue that the Supervisors’ grant of the waiver
permitting 1.9 acres of steep slopes in excess of 40% to be disturbed, where no
disturbance is permitted, contains both procedural and substantive defects. First,
Objectors assert, Section 78-53(B)(3)(c) of the SALDO requires that any
modification or waiver request first be presented to the Planning Commission. They
contend this did not occur here. Additionally, Objectors argue, the SALDO requires
any waiver of this restriction receive approval by the Township Engineer, and the
Township Engineer did not approve the request here. Further, Objectors maintain,
the Supervisors erred in finding that a disturbance of 1.9 acres of steep slopes is de
minimis.


             Objectors argue that the Planning Commission meetings here occurred
in April and May 2016.       They assert the Township received the request for
modification to disturb slopes in excess of 40% in late-June 2016. Objectors contend
this eleventh hour modification request to disturb 1.9 acres of slopes that exceed
40%, was never reviewed by the Planning Commission, as required by the SALDO.
Consequently, they maintain there was no recommendation entered into the official
record of the Supervisors’ meeting for this significant modification request.
Objectors argue that Section 78-53(B)(3) of the SALDO states that any request for
a modification shall be submitted, in writing, by an applicant as part of the
application for preliminary subdivision approval. They contend the preliminary
subdivision application here contained no request for modification of the zoning
ordinance provision prohibiting disturbance of steep slopes that are greater than
40%.




                                          7
             In addition, Objectors argue Applicant failed to satisfy the prerequisite
of Section 84-124(A)(3) of the zoning ordinance, which states: “This provision, if
acceptable to the Township Engineer, may be waived if such slope is found to be a
localized, isolated slope condition that is not environmentally sensitive or unstable
(such as a previous man-made earth fill condition) and/or is necessary for installation
of utility lines.” Id. (emphasis added). Objectors contend that, in his initial report,
the Township Engineer noted that Applicant’s Plan did not have a tabulation of the
existing steep slope areas to be disturbed. Reproduced Record (R.R.) at 38a. When
Applicant revised its site grading plan (drawing C-400), Objectors assert, the
Township Engineer’s review letter noted that the proposed Plan disturbs 37% of the
slopes that are greater than 40%. R.R. at 45a. Objectors maintain this was the
standing comment letter that was brought to the Supervisors’ attention at the June
2016 hearing.


             Objectors argue that after the June 2016 hearing when Applicant
submitted its tardy waiver request to disturb the steep slopes in excess of 40%, the
Township Engineer in his July 2016 comment letter stated only that Applicant
requested a waiver of the requirement. R.R. at 51a. Objectors contend that at no
time did the Township Engineer state that the disturbance of 37% of the slopes on
the subject property which were greater than 40% should be permitted. Additionally,
Objectors assert, as is clear from Applicant’s site grading plan, the area is not
localized and cannot be characterized as de minimis, particularly where it is such a
large percentage of the steep slopes on the 85-acre subject property as well as a 1.9
total acre disturbance area. Objectors also argue the site grading plan shows these




                                          8
disturbances are needed solely to increase the number of lots in the Plan, in order to
economically benefit Applicant.


             Objectors assert the subject property has two large relatively level
areas, which, at the time of the application, were cornfields. Because a significant
portion of the subject property can be reasonably used to develop buildable lots,
Objectors argue, Applicant has a reasonable use of the subject property and is not
entitled to hardship relief to ignore the zoning ordinance’s steep slope protections.
See Boyer v. Zoning Hearing Bd. of Franklin Twp., 987 A.2d 219 (Pa. Cmwlth.
2010) (upholding denial of steep slope variance for construction of single-family
home where property was currently used for harvesting, sawing, and selling timber);
Zappala Grp., Inc. v. Zoning Hearing Bd. of Twp. of McCandless, 810 A.2d 708
(Pa. Cmwlth. 2002) (denying variance from steep slope regulation where developer
could develop part of the land unconstrained by prohibited steep slopes without
requested relief).


             Objectors further maintain the Supervisors erroneously concluded the
disturbance of 1.9 acres of steep slopes was de minimis. They assert the rule of de
minimis variances is a narrow exception that only applies in limited situations, where
the proposed dimensional deviation from a requirement is relatively minor, and
where insistence on rigid compliance is not absolutely necessary to preserve the
public policy to be obtained.     E. Allegheny Cmty. Council v. Zoning Bd. of
Adjustment of City of Pittsburgh, 563 A.2d 945 (Pa. Cmwlth. 1989); see Kensington
S. Neighborhood Advisory Council v. Zoning Bd. of Adjustment of Phila., 471 A.2d
1317 (Pa. Cmwlth. 1984).



                                          9
                Applicant responds that Section 512.1(a) of the Pennsylvania
Municipalities Planning Code (MPC)6 authorizes the grant of waivers from a
municipality’s SALDO. It argues Pennsylvania law is well-settled that a waiver is
proper where a development offers a substantial equivalent to a subdivision
requirement, where an additional requirement would offer little or no added benefit,
and where literal enforcement of the requirement would frustrate the effect of
improvements. Monroe Meadows Hous. P’ship, LP v. Municipality of Monroeville,
926 A.2d 548 (Pa. Cmwlth. 2007); see also Levin v. Twp. of Radnor, 681 A.2d 860
(Pa. Cmwlth. 1996).          Applicant asserts the grant of a waiver is within the
Supervisors’ discretion. Section 512.1(a) of the MPC.


                Applicant maintains its requested waiver from the zoning ordinance’s
steep slope restriction, and the Supervisors’ corresponding finding granting the
waiver, is set forth in Finding of Fact No. 5(c). R.R. at 78a. First and foremost,
Applicant argues, the Supervisors found this requested waiver was de minimis.
Applicant asserts it submitted the appropriate geotechnical engineering reports
establishing that such disturbances: will not impact environmentally sensitive or
unstable slopes; pose no threat to adjacent properties; and, with the use of proper
compaction and keyways, constitute grading that is feasible and safe. Applicant
contends the Township Engineer reviewed and approved this submission.
                Contrary to Objectors’ unsupported claims that this waiver is unsafe
and will severely impact the surrounding neighborhood, Applicant argues, it
submitted engineering reports that state the opposite, and the Township Engineer


      6
          Act of July 31, 1968, P.L. 805, added by the Act of December 21, 1988, 53 P.S. §10512.1.

                                                10
reviewed those reports and approved the waiver. In fact, Applicant maintains,
Objectors did not submit a single expert report that would support their claims.
Additionally, Applicant argues, if it were to strictly adhere to the steep slope
restriction, such adherence would offer little or no added benefit, and would actually
result in greater land disturbance.      It contends strict compliance with this
requirement would frustrate the effects of improvements. Therefore, Applicant
asserts, the grant of the requested waiver positively impacts the area by disturbing
the least amount of land possible. As a result, Applicant argues, the Supervisors
properly granted this waiver under the standards established by Pennsylvania law.


             Further, Applicant maintains, the Township Engineer described
Applicant’s plan to disturb 37% of slopes greater than 40% in its May 2016 review
letter. R.R. at 45a. Applicant asserts the Planning Commission’s recommendation
issued shortly thereafter, R.R. at 60a-65a, pursuant to Applicant’s preliminary Plan,
recommended approval with the condition that Applicant comply with the Township
Engineer’s May 2016 review letter that details Applicant’s proposal to disturb 37%
of the slopes greater than 40%. R.R. at 64a.


             Applicant argues that Objectors’ assertion that the Township Engineer
and Objectors were not aware of Applicant’s waiver request prior to June 28, 2016
is untrue as evidenced by the May 2016 review letter. R.R. at 44a-49a. Applicant
maintains the Planning Commission’s recommended approval was conditioned on
compliance with the Township Engineer’s review letter that details this request.
Applicant argues that the Township Engineer stated: “The [zoning ordinance]
requires that slopes greater than 40% not be disturbed. Status: The plan proposes to



                                         11
disturb 37% of slopes greater than 40%.” R.R. at 45a. Applicant contends it
unequivocally presented this request to the Planning Commission as detailed in the
Township Engineer’s review letter upon which the Planning Commission
conditioned approval. Applicant asserts Objectors’ argument that this request was
“tardy” or made at the eleventh hour is not supported by the record or the Township
Engineer’s May 2016 review letter.


             Finally, Applicant asserts, even if this Court does not find that the
requested waivers were presented to the Planning Commission in May 2016,
Applicant presented all three waiver requests to the Planning Commission again
during the final approval process of Phase I of the Plan in December 2016 and
January 2017.    It asserts the preliminary Plan was submitted to the Planning
Commission, and approved by the Supervisors on July 5, 2016. R.R. at 5a-9a.
Applicant contends it then submitted the final Plan for Phase 1 to the Planning
Commission, together with all three modification requests. Applicant argues the
Planning Commission recommended final approval of these items, R.R. at 130a, and
the Supervisors again approved them. R.R. at 116a.


             Applicant argues that under the SALDO, modification requests can be
presented to the Planning Commission as part of any preliminary or final
application, and Applicant complied with that provision when it submitted its final
Plan for Phase I of the proposed development. It asserts the Township Engineer
detailed this modification request in its December 2016 review letter pursuant to
Applicant’s application for final subdivision approval of Phase I of its Plan. R.R. at
118a. Again, Applicant contends, Objectors’ assertion that Applicant did not present



                                         12
this request to the Township Engineer and the Planning Commission upon final
approval of Phase I of the Plan is incorrect and not supported by any record evidence.


             Through their reply brief, Objectors again assert the requested
modification to waive the prohibition of disturbance of 1.9 acres of steep slopes that
are greater than 40% was never presented to the Planning Commission or approved
by the Township Engineer, as required. Objectors argue the Planning Commission
meetings on the preliminary Plan occurred in April and May 2016. R.R. at 55a-59a,
60a-65a. They assert the Township received the request for modification to disturb
slopes greater than 40% on June 28, 2016. R.R. at 92a. Thus, Objectors contend, at
the time of the Planning Commission’s vote on the preliminary Plan in May 2016,
no waiver requests from the steep slope restrictions were lodged with the application.
In fact, Objectors maintain, the Planning Commission’s recommendation at that time
was that Applicant comply with the Township Engineer’s May 2016 review letter.
R.R. at 64a. Objectors argue the May 2016 review letter stated that the zoning
ordinance prohibits steep slopes greater than 40% from being disturbed, and the Plan
proposed to disturb 37% of the slopes greater than 40%. R.R. at 45a. Objectors
assert this makes it clear that the Plan as submitted at that time did not comply with
the zoning ordinance regarding disturbance of steep slopes greater than 40%.


             Objectors contend that Applicant attempts to mischaracterize the
Township Engineer’s statement that the Plan was not in compliance with the zoning
ordinance, as a modification request.




                                         13
             Objectors also reiterate that the SALDO requires that an applicant
submit any request for a modification in writing as part of the application for
preliminary subdivision approval. Here, Objectors contend, the application for
preliminary approval contained no request for modification of the restriction
prohibiting disturbance of steep slopes greater than 40%. Objectors argue that on
June 28, 2016, Applicant submitted a request for a waiver to disturb 37% of the
slopes greater than 40%, where none is permitted. They assert the Supervisors
granted this request four business days later, on July 5, 2016.


             In addition, Objectors contend, the request for modification was not
presented to the Planning Commission for final approval of Phase I of the Plan.
Objectors argue that when Applicant filed its application for final approval of Phase
I, the plans submitted stated that waivers were already granted. They assert the
application for Phase I final Plan approval, filed in November 2016, contained no
request for modifications. R.R. at 116a. Objectors contend the Township Engineer
in its December 1, 2016 review letter of the final Plan for Phase I, noted that while
the zoning ordinance required that slopes greater than 40% not be disturbed: “A
waiver of this requirement was approved at the time of preliminary approval.” R.R.
at 118a. Again in the January 2017 Township Engineer’s review letter, Objectors
argue, it was restated that “the [zoning ordinance] requires that slopes greater than
40% not be disturbed …. A waiver of this requirement was approved at the time of
preliminary approval.” R.R. at 123a.


             Objectors further contend that, at the Planning Commission meeting in
January 2017, when an attempt was made to discuss the requested waivers,



                                         14
Applicant’s counsel convinced the Planning Commission that the waivers were
subject to litigation. R.R. at 128a. Objectors argue that at that meeting the
Supervisors, when considering final approval for Phase I of the Plan, conclusively
stated “the waivers were granted previously and are covered in the appeal.” R.R. at
131a. Contrary to Applicant’s assertions, Objectors assert, during the final approval
stage for Phase I of the Plan, the request to waive the zoning ordinance’s prohibition
of disturbing steep slopes greater than 40%, was never vetted before the Planning
Commission.7


                                            2. Analysis
                As to the grant of modifications or waivers generally, Section 512.1 of
the MPC, cited by the parties, states:

                (a) The governing body or the planning agency, if
                authorized to approve applications within the subdivision
                and land development ordinance, may grant a
                modification of the requirements of one or more
                provisions if the literal enforcement will exact undue
                hardship because of peculiar conditions pertaining to the
                land in question, provided that such modification will not
                be contrary to the public interest and that the purpose and
                intent of the ordinance is observed.

                (b) All requests for a modification shall be in writing and
                shall accompany and be a part of the application for
                development. The request shall state in full the grounds
                and facts of unreasonableness or hardship on which the
                request is based, the provision or provisions of the
                ordinance involved and the minimum modification
                necessary.




      7
          The Supervisors did not file a brief with this Court.

                                                 15
               (c) If approval power is reserved by the governing body,
               the request for modification may be referred to the
               planning agency for advisory comments.

               (d) The governing body or the planning agency, as the case
               may be, shall keep a written record of all action on all
               requests for modifications.


               Applying this statutory provision is problematic here with regard to
Applicant’s requested modification of the zoning ordinance’s steep slope regulations
because Section 512.1 of the MPC relates to modifications of SALDO requirements.
Likewise, Objectors’ reliance on Section 78-53(B) of the SALDO’s procedural
requirements for the granting of modifications or waivers is misplaced as the steep
slope regulations are set forth in the zoning ordinance.8


               To that end, Section 84-124 of the zoning ordinance sets forth the steep
slope controls, and it includes a “self-contained” waiver provision from its
restrictions on the disturbance of steep slopes. More particularly, Section 84-124
states, in pertinent part (with emphasis added):

               Any portion of any lot or tract that has a natural slope or
               finished slope after grading in excess of 25% shall be
               considered a steep slope area and shall be subject to the
               following regulations.

               A. Slopes in excess of 40%.

                      (1) Slopes in excess of 40% shall not be disturbed
                      by grading, construction, or removal of vegetation,


       8
           Indeed, that provision authorizes the Supervisors to “grant modifications to any of the
requirements of this chapter ….” Section 78-53(B) of the SALDO (emphasis added). The SALDO
is set forth in Chapter 78 of the Township Code, while the zoning ordinance is set forth in Chapter
84 of the Township Code.

                                               16
                  other than the removal of dead or diseased trees or
                  other vegetation.

                  (2) All applications shall be accompanied by a
                  certification from a registered civil engineer that
                  slopes in excess of 40% shall not be disturbed in
                  accordance with this subsection.

                  (3) This provision, if acceptable to the Township
                  Engineer, may be waived if such slope is found to
                  be a localized, isolated slope condition that is not
                  environmentally sensitive or unstable (such as a
                  previous man-made earth fill condition) and/or is
                  necessary for installation of utility lines.

Section 84-124(A)(1)-(3) of the zoning ordinance.


            Here, in granting a waiver from Section 84-124(A)(1), the Supervisors
stated:

            c.) Requested Waiver of Section 84-124(A)(1) of the
            Code. The proposed development (as stated in Applicant’s
            supplemental waiver request of June 15, 2016) shall
            include limited disturbances of certain slopes in excess of
            40%.

                  Finding: A grant of this requested waiver is
                  warranted due to the de minimis nature and
                  isolated locations of the disturbances.        In
                  addition, Applicant submitted an appropriate
                  geotechnical    engineering    report      which
                  establishes that such disturbances: will not
                  impact environmentally sensitive or unstable
                  slopes; pose no threat to adjacent properties;
                  and, with the use of proper compaction and
                  keyways, constitute grading which is feasible and
                  safe. Under such circumstances a waiver, in
                  accordance with that allowable by the provisions
                  of Section 84-124(A)(B) [sic], is appropriate
                  (with the concurrence of the Township’s
                  Engineer).

                                        17
Pine Twp. Bd. of Supervisors’ Dec., 7/5/16, Finding of Fact (F.F.) No. 5(c).


             Contrary to the Supervisors’ finding and the arguments advanced by
Applicant, our review of the record here does not reveal that the Township Engineer
deemed a waiver of the zoning ordinance’s steep slope regulations acceptable as
required by Section 84-124(A)(3) of the zoning ordinance. To that end, Applicant
did not seek a waiver of the steep slope restriction until after the close of the public
hearing on Applicant’s conditional use application and shortly before the
Supervisors’ grant of Applicant’s request for conditional use approval. R.R. at 92a.


             In addition, in its initial review letter in April 2016, the Township
Engineer stated:

             The [zoning] [o]rdinance requires that slopes greater than
             40% not be disturbed. (Section 84-124.A.(1).) Status: A
             plan and tabulation of existing steep slope areas and
             their disturbed areas has not been provided.

R.R. at 38a (emphasis by underline added).


             Thereafter, the Township Engineer issued a second review letter in May
2016, which stated:
            The [zoning] [o]rdinance requires that slopes greater than
            40% not be disturbed. (Section 84-124.A.(1).) Previous
            Comment: A plan and tabulation of existing steep slope
            areas and their disturbed areas has not been provided.
            Status: The plan proposes to disturb 37% of slopes
            greater than 40%.

R.R. at 45a (emphasis by underline added). While Applicant relies on this statement
in support of its argument that the Township Engineer deemed a waiver of the zoning


                                          18
ordinance’s steep slope regulations acceptable as required by Section 84-124(A)(3)
of the zoning ordinance, there are two flaws in this argument. First, the above-
quoted comment does not state that the Township Engineer deemed a waiver of the
steep slope regulations acceptable. Additionally, and more importantly, the above-
quoted comment was made more than a month before Applicant submitted its
request for a waiver of the zoning ordinance’s steep slope regulations. See R.R. at
92a. Therefore, this comment by the Township Engineer cannot be construed as an
approval of the as-yet nonexistent waiver request for the disturbance of steep slopes.


              Further, in a letter dated the same day as the Supervisors’ grant of
Applicant’s conditional use application, the Township Engineer issued a review
letter that stated:

              The [zoning] [o]rdinance requires that slopes greater than
              40% not be disturbed. (Section 84-124.A.(1).) Previous
              Comment: A plan and tabulation of existing steep slope
              areas and their disturbed areas has not been provided.
              Previous Comment: The plan proposes to disturb 37% of
              slopes greater than 40%. Status: The applicant has
              requested a waiver of this requirement.
R.R. at 51a (emphasis by underline added). While the Township Engineer’s review
letter states that Applicant requested a waiver of the steep slope restriction in Section
84-124(A)(1) of the zoning ordinance, there is no indication that the Township
Engineer deemed this waiver acceptable as required by Section 84-124(A)(3) of the
zoning ordinance.


              Months thereafter, in its review of Phase I of Applicant’s final Plan, the
Township Engineer stated:



                                           19
             The [zoning] [o]rdinance requires that slopes greater than
             40% not be disturbed. (Section 84-124.A.(1).) Previous
             Comment: A plan and tabulation of existing steep slope
             areas and their disturbed areas has not been provided.
             Previous Comment: The plan proposes to disturb 37% of
             slopes greater than 40%. Status: A waiver of this
             requirement was approved at the time of preliminary
             approval.

R.R. at 118a. Despite this statement, and as detailed above, there is no indication
that the Township Engineer previously deemed Applicant’s requested waiver from
the zoning ordinance’s steep slope restriction acceptable.              Under these
circumstances, the Supervisors erred in granting Applicant’s request for a waiver
from the zoning ordinance’s steep slope restrictions.


             Nevertheless, Applicant asserts that the Township Engineer approved
its geotechnical report prior to the Supervisors’ grant of the requested waiver from
Section 84-124(A)(1) of the zoning ordinance’s steep slopes restrictions. Applicant
offers no record citation in support of this assertion. Moreover, our careful review
of the record, including the minutes of the Supervisors’ hearing on Applicant’s
conditional use application and the Township Engineer’s review letters issued prior
to, and the same day as, the Supervisors’ grant of the requested waiver from the steep
slopes restriction set forth in Section 84-124(A)(1) of the zoning ordinance, does not
disclose support for this assertion.


             Further, the certified record contains a Supplemental Geotechnical
Exploration Report, dated September 22, 2016, more than two months after the




                                         20
Supervisors approved Applicant’s request for a waiver from the steep slope
restrictions set forth in Section 84-124(A)(1) of the zoning ordinance.9


                B. Waiver of SALDO’s Private Street Requirements
                                 1. Contentions
               Objectors next argue that the trial court erred in not reversing the
Supervisors’ grant of Applicant’s request to waive the SALDO’s requirements that
no more than 3 dwelling units be served by a private street, and that private street
right-of-ways may not be less than 50 feet in width, where the requested
modification will increase stormwater runoff and was granted solely for aesthetic
reasons. See Section 78-39(K) of the SALDO.


               Objectors acknowledge that the MPC permits a local governing body
to grant waivers from SALDO requirements where literal enforcement would exact
undue hardship because of peculiar conditions pertaining to the land at issue.
Objectors contend such waivers cannot be contrary to the public interest. Objectors
argue that this Court characterizes waivers under Section 512.1 of the MPC as
variances. DeFilippo v. Cranberry Twp. Bd. of Supervisors, 49 A.3d 939 (Pa.
Cmwlth. 2012).




     9
         Also, this Supplemental Geotechnical Exploration Report states that the results of a
preliminary geotechnical exploration were submitted in February 2016. However, the results of
this prior, preliminary geotechnical exploration, which apparently was conducted several months
prior to Applicant’s request for a waiver from the steep slope restrictions set forth in Section 84-
124(A)(1) of the zoning ordinance, are not of record. Further, there is no indication that the
Township Engineer approved those results prior to the Supervisors’ grant of the requested waiver
from the steep slopes restriction set forth in Section 84-124(A)(1) of the zoning ordinance.



                                                21
             Objectors maintain the reasons Applicant set forth in its application for
having two private streets serving more than 3 lots that are only 30 feet in right-of-
way width was to create a more “visible dynamic” as residents and visitors circulate
through the community. R.R. at 7a. Further, at the Supervisors’ June 2016 meeting,
Objectors argue, Applicant’s representative stated that the private streets will allow
all of the homes to be placed in a more “attractive pattern.” R.R. at 67a. Essentially,
Objectors argue, the stated reason for laying out streets that are 40% narrower than
required, was purely aesthetic, despite the fact that the standard street width
requirements take into account safety considerations such as emergency vehicle
access. With the stated reasons for these waivers as aesthetic purposes only,
Objectors contend, the Supervisors erroneously concluded this rose to the level of
undue hardship.


             Objectors also maintain that, at the time of the application, the subject
property consisted of two large cornfields. Because Applicant is essentially creating
the subdivision on a blank canvas, Objectors argue, the widths of streets could not
be an issue caused by the subject property’s physical characteristics. Rather, this is
a self-imposed hardship.


             Objectors further assert our courts consistently hold that aesthetic
concerns do not amount to the requisite hardship. Goldstein v. Zoning Hearing Bd.
of L. Merion Twp., 19 A.3d 565 (Pa. Cmwlth. 2011). Thus, they contend, choosing
not to provide 50-foot wide streets as required by the SALDO for aesthetic reasons,
is not the hardship necessary for granting any divergence. Catholic Soc. Servs. Hous.




                                          22
Corp. v. Zoning Hearing Bd. of Edwardsville Borough, 18 A.3d 404 (Pa. Cmwlth.
2011).


             Applicant counters that its requested waiver regarding private streets,
and the Supervisors’ corresponding determination, is set forth in Finding of Fact No.
5(b). Applicant asserts the Supervisors found that the requested waiver would allow
for a more visually pleasing effect and overall site design. Additionally, Applicant
contends, by granting the waiver, the roads will remain private roads; therefore,
maintenance of the roads will not be a municipal expense. Applicant maintains that
the Supervisors also determined this waiver was highly beneficial to the planned
development because it allows for driveways and garages to be located in the rear of
the dwellings, and, as such, promotes a walkable, sidewalk-enhanced community
without having to provide for the impact of driveway cuts. Id.


             Moreover, Applicant argues, contrary to Objectors’ assertions, the
Supervisors’ finding was not based on purely aesthetic reasons, but rather the overall
function and utility of the development in light of accepted standards in the
Township.     Based on the Supervisors’ finding, Applicant contends, literal
enforcement of the street width requirement would be more detrimental than
beneficial to the overall planned development, harming both the visual effect of the
Plan and the walkable sidewalks. Applicant asserts its strict adherence to this
requirement would offer no benefit if enforced and would frustrate the effects of
improvements. Therefore, Applicant argues, this waiver was appropriately granted
under the standards established by Pennsylvania law.


                                     2. Analysis

                                         23
            As to the Supervisors’ grant of Applicant’s requests for waivers from
Section 78-39(K) of the SALDO, that provision states (with emphasis added):

            K. Every lot shall abut on at least one public street, as such
            is defined in this chapter, but not only on a service street;
            provided, however, that not more than three dwelling units
            may be served by a private street (as defined in § 78-9 of
            this chapter) of not less than 50 feet in width, provided that
            a modification is granted in accordance with the
            procedures of § 78-53B of this chapter. In addition to the
            requirements and conditions stated [in] this chapter, the
            governing body may impose such additional requirements
            upon the allowance of a private street as such a
            modification to the terms of this chapter, including but not
            limited to the following:

            (1) Partial or full compliance with any or all the
            requirements, standards or conditions for the approval of
            public roads, as set forth in this chapter, Township
            Ordinance No. 116 and all other Pennsylvania and
            Township laws, ordinances and regulations, now and as
            amended in the future, including but not limited to design,
            construction and maintenance standards and performance
            and maintenance bond requirements.

            (2) The execution of a formal agreement by the developer,
            approved by the Township Solicitor, whereby the
            developer agrees to the nondelegable duty of perpetual
            maintenance of the private road.


            Further, with regard to waivers or modifications from SALDO
requirements, as set forth above, Section 512.1(a) of the MPC states (with emphasis
added):

            (a) The governing body … may grant a modification of the
            requirements of one or more provisions if the literal
            enforcement will exact undue hardship because of peculiar
            conditions pertaining to the land in question, provided that
            such modification will not be contrary to the public

                                         24
           interest and that the purpose and intent of the ordinance is
           observed.


           In addition, Section 78-53 of the SALDO states, in relevant part (with
emphasis added):

           B. Waivers and modifications. The [Supervisors] shall
           have the authority to grant modifications to any of the
           requirements of this chapter, provided that the following
           procedures and requirements are met. …

                   (1) Modifications in cases of physical hardship. In
                   any particular case where the applicant can show by
                   plan and written statement that, by reason of
                   topographic or other physical conditions, the literal
                   enforcement of any requirement of this chapter
                   would exact undue hardship because of peculiar
                   conditions pertaining to the land in question, the
                   [Supervisors] may modify such requirements to the
                   extent deemed just and proper, so as to relieve such
                   hardship, provided that such modification will not
                   be contrary to the public interest and that the intent
                   and purpose of this chapter is observed.

                   (2) Modifications to allow equal or better
                   specifications. When an equal or better
                   specification is available to comply with the
                   Township improvement specifications or design
                   standards of this chapter, the [Supervisors] may
                   make such reasonable modifications to such
                   requirements of this chapter to allow the use of the
                   equal or better specification, upon recommendation
                   of the Township Engineer. In approving such
                   modification, the [Supervisors] may attach any
                   reasonable conditions, which may be necessary to
                   assure adequate public improvements and protect
                   the public safety.

                   (3) Procedures for authorizing modifications.



                                         25
                        (a) Any request for a modification to this
                        chapter authorized by this section shall be
                        submitted, in writing, by the applicant as part
                        of the application of a preliminary or final
                        application, stating the specific requirements
                        of this chapter which are proposed to be
                        modified, the grounds and facts of
                        unreasonableness or hardship on which the
                        request is based and the minimum
                        modification deemed necessary.

                        (b) The request for a modification to this
                        chapter shall be considered by the
                        [Supervisors] at a public meeting. The
                        [Supervisors] may hold a public hearing
                        pursuant to public notice prior to making a
                        decision on the request for a modification.

                        (c) Requests for modifications shall be first
                        reviewed by the Planning Commission. The
                        Planning Commission recommendation shall
                        be entered into the official record of the
                        [Supervisors’] meeting.

                        (d) The [Supervisors] shall keep a written
                        record of all actions on all requests for
                        modification and the reasons relied upon by
                        the [Supervisors] in approving or
                        disapproving the request for a modification
                        shall be entered into the minutes of the
                        meeting.     Any decision, resolution, or
                        ordinance adopted governing an application,
                        which contains a request for a modification
                        shall include reference to the modification
                        and the reasons for approval or disapproval.


            Here, in granting Applicant’s requested waivers from Section 78-39(K)
of the SALDO, the Supervisors stated:

            b.) Requested Waivers of Chapter 84’s incorporated
            provisions of Section 78-39 (K) of the [SALDO]. The

                                        26
              proposed development shall include construction of two
              (2) private streets (Elm Road and Birch Road) which shall
              each have a width of right-of-way of thirty (30’) feet (less
              than the otherwise required fifty (50’) feet) and which
              shall each serve more than the otherwise permitted
              maximum of three (3) dwelling units.

             Finding: Grants of these two (2) requested waivers are
             warranted so as to allow for rotation of certain
             structures (to be perpendicular to Spruce Street) and
             to break apart the line of building facades and create a
             more pleasing visual effect in addition, the rotated
             structures gain frontage along a right-of-way as
             required by the [SALDO]. The overall effect of the
             requested waivers in these areas is supportive of:
             Imaginative, flexible site design; efficiency of the use of
             available space; limitation of overall site disturbance;
             and utilization of driveways and garages to be located
             in the rear of structures (thus promoting a walkable,
             sidewalk-enhanced community).
F.F. No. 5(b).10

       10
         The Supervisors’ grant of the requested waivers from Section 78-39(K) of the SALDO,
which the Planning Commission recommended approval of, R.R. at 64a, are based on a letter
submitted to the Supervisors by Applicant’s Engineer, which states (with emphasis added):

              The Townships [sic] encourages imaginative site design.
              Accordingly, the zoning codes [sic] permits flexibility in building
              spacing and orientation. Therefore, [Applicant] has chosen to rotate
              some of the single family attached buildings to be perpendicular to
              Spruce Street. The intent of the design is to break apart the line of
              building facades that face Spruce Road thus creating more visual
              dynamic as residents and visitors circulate through the community.
              Since some of the buildings are perpendicular to the public right-of-
              way, lot frontage must be gained along a right-of-way other than
              Spruce Road to allow subdivision and sale of lots. Accordingly,
              [Applicant] has proposed two private streets (Elm Road & Birch
              Road) with a 30 foot right-of-way width. In addition, more than 3
              units will be served by each private street. The design enables the
              rotated buildings to gain frontage along a right-of-way as required
              by code. The flexibility in building orientation and spacing enables
              a key development goal of the community to be realized.
              Development is concentrated in two relatively flat portions of the



                                              27
             Upon review, we conclude the Supervisors erred in granting the
requested waivers from Section 78-39(K) of the SALDO.                         To that end, the
Supervisors’ finding, which granted Applicant’s requested waivers from Section 78-
39(K) does not clearly or specifically explain how waivers from the literal
enforcement of that provision are necessary to prevent undue hardship based on the
peculiar conditions of the subject property. F.F. No. 5(b); see Section 78-53(B)(1)
of the SALDO. Indeed, in light of the fact that, prior to Applicant’s proposed
development, the subject property was unimproved, it is unclear why Applicant
could not lay out its private streets in a manner that complies with Section 78-39(K)
of the SALDO’s requirements. As such, the Supervisors erred in determining that
waivers from the literal enforcement of that provision were necessary to prevent
undue hardship based on the peculiar conditions of the subject property. Further,
the aesthetic concerns cited by the Supervisors do not constitute undue hardship.
Goldstein; Hipwell Mfg. Co. v. Zoning Bd. of Adjustment of City of Pittsburgh, 452
A.2d 605 (Pa. Cmwlth. 1982).

             site that are currently open fields. This design helps limit site
             disturbance and protect natural areas comprised of trees, waterways,
             and steep slopes primarily around the perimeter of the site. The
             smaller, private right-of-ways permit flexibility in design and gain
             efficiency in space so that the overall limit of disturbance is reduced.
             The private drives are looped so that emergency access vehicles and
             other services agencies (trash collection, snow removal, etc.) can
             easily maneuver unimpeded. Also, the private drives help ensure
             that the front facades of the buildings face the street and the
             driveways and garages are located in the rear of the buildings
             helping to emphasize and promote the idea of a walkable, sidewalk
             community. The private drives will be owned and maintained by the
             Home Owners Association.

Reproduced Record at 7a.



                                               28
               In addition, the Supervisors’ finding does not explain how Applicant’s
proposed reduction in the required width of its proposed private streets and its
proposed increase in the minimum number of dwellings served by those streets
represents a modification that would permit equal or better specifications to comply
with the Township’s improvement specifications or the SALDO’s design standards.
See Section 78-53(B)(2) of the SALDO. Under these circumstances, the Supervisors
erred in granting the requested waivers from Section 78-39(K) of the SALDO.11




                                        IV. Conclusion
               Based on the foregoing, we reverse the decision of the trial court that
affirmed the Supervisors’ decisions granting Applicant’s conditional use application
and its applications and plans for preliminary and final subdivision and land
development approval.12


       11
           Although Objectors briefly note that the Supervisors also granted Applicant’s requested
waiver from Section 48-18(A) of the excavation and fill ordinance, see Appellant’s Br. at 16, they
offer no developed argument challenging the grant of this requested waiver. Therefore, we do not
address the Supervisors’ grant of the requested waiver from Section 48-18(A) of the excavation
and fill ordinance.
       12
          Based on our determinations that the Supervisors erred in granting the requested waivers
from the zoning ordinance’s steep slope restriction, and the SALDO’s requirements regarding
private streets, we need not address Objectors’ arguments that the Supervisors erred in granting
the requested waivers where the grant of the requested waivers would be detrimental to the public
interest.
        Nor do we address at length Objectors’ argument that the lack of a stenographic transcript
of the conditional use hearing results in an inadequate record for appellate review. It is sufficient
for present purposes to note that where a board of supervisors is granted jurisdiction to adjudicate
a matter under a zoning ordinance, such as a conditional use application, Section 908(7) of the
MPC, 53 P.S. §10908(7), applies and requires a stenographic record. See Section 107(b) of the
MPC, 53 P.S. §10107(b) (defining the term “Board”).

                                                29
                                    ROBERT SIMPSON, Judge


Senior Judge Leadbetter dissents.




                                     30
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lake MacLeod Homeowners,                :
Association, Inc., Jonathan Iams,       :
John and Sujata Donahue, AJ and         :
Deanna Jugan, Don and Alycia            :
Lamparski, Sherwood and Shawna          :
Johnson, Jim and Joyce Hensler,         :
Jason and Danielle Grilli, Gregory      :
and Lora Rich, Adan and Jodi Kanter,    :
Matthew Lydic, Sandeep and Shaifali     :
Sharma, Stephanie Novosel, Todd and     :
Donna White, Richard and Melinda        :   No. 1247 C.D. 2017
Hoyland, Vince Lattari and Rebeccah     :
Hoffman, Neil and Nicole Walker,        :
Michael Duckworth and Tracy Howe,       :
Jeff and Allison Romano, Doug and       :
Diane Murray,                           :
                          Appellants    :
                                        :
            v.                          :
                                        :
Pine Township Board of Supervisors      :
Cavalier Land Partners, LP              :


                                 ORDER

            AND NOW, this 12th day of March, 2018, the order of the Court of
Common Pleas of Allegheny County is REVERSED.




                                       ROBERT SIMPSON, Judge
