R. Naylor & S. Naylor, h/w v. Bd. of Supers. of Charlestown Twp. ~ Appeal of: Bd. of Supers. of Charlestown Twp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and :

Suzanne Naylor, h/w :

:

v. : No. 659 C.D. 2018

:

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne :

Naylor, h/w :

:

v. : No. 707 C.D. 2018

: Argued: November 13, 2019

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: January 7, 2021

1

The decision in this case was reached before January 4, 2021, when President Judge

Leavitt served as President Judge.

In these consolidated appeals, the Board of Supervisors of Charlestown

Township (Township) and French and Pickering Creeks Conservation Trust, Inc.

(Trust) appeal the judgment entered by the Court of Common Pleas of Chester

County (trial court) in favor of husband and wife Russell and Suzanne Naylor

(collectively, Naylors) and against the Township and the Trust. The Township and

the Trust assert procedural and substantive errors of law. After careful

consideration, we affirm.

I. Background

The Naylors commenced this action in October 2014 by filing a single-

count complaint (Complaint) seeking a declaratory judgment under the Declaratory

Judgments Act (DJA)2 that would permit them to build a single-family dwelling on

their property. The subject property is located at 2445 Charlestown Road, Malvern,

Chester County (Property), and was once part of a larger tract known as the

Baughman Farm. The following is a summary of the protracted history and relevant

facts.

The Baughman Farm is situated in the scenic Pickering Creek Valley

and is part of the Charlestown National Historic District.3 In August 1986, Arnold

Bartschi, then owner of the Baughman Farm, placed his farm into a conservation

easement, titled “Open Space Easement in Gross in Perpetuity and Declaration of

2

42 Pa. C.S. §§7531-7541.

3

The Baughman Farm is bounded by Charlestown Road to the east, Pickering Creek to the

south, a Pickering Creek tributary to the west, and Pickering Road to the north. Trial Court Op.,

1/12/18, at 3.

2

Restrictive Covenants” (Easement), with the Trust.4 At the time, the Baughman

Farm was comprised of three tax parcels: Chester County Tax Parcel (CCTP) Nos.

35-2-8, 35-2-73 and 35-2-74. The Easement expressed the desire to preserve,

conserve and protect the Baughman Farm and its agricultural, historic, scenic and

relatively natural state. The Easement noted the presence of a historic water-

powered mill (Mill) and a dwelling house of Victorian architecture (Victorian

House).5 It prohibited the construction of new or additional buildings or structures

unless necessary for agricultural purposes. In exchange for entering into the

Easement, the Trust paid Bartschi nominal consideration ($1). Trial Court Op.,

7/19/16, at 2; see Easement at 1-21; Reproduced Record (R.R.) at 126a-29a, 1298a-

1318a.

Shortly after entering into the Easement, the Victorian House was

destroyed by fire and was never reconstructed. Its ruins were bulldozed and grass

was planted on the site. Over time, the location of the Victorian House became

obscured. Trial Court Op., 7/19/16, at 2.

After the Victorian House was destroyed, William and Elizabeth

Anderson (Andersons) expressed interest in purchasing the Baughman Farm

contingent on their ability to erect two dwellings – a main residence, in which they

intended to live, and a tenant house, in which their parents would live. When the

Trust objected, Bartschi filed a declaratory judgment action against the Trust to

permit the construction of the two dwellings on the property. The trial court,

4

The Easement was duly recorded with the Chester County Recorder of Deeds in Deed

Book 419, Page 378. Trial Court Op., 7/19/16, at 2.

5

At the time the Easement was entered, a dilapidated barn also existed on the Baughman

Farm, but it was not identified in the Easement. Trial Court Op., 7/19/16, at 14.

3

presided over by the late Honorable Leonard Sugerman, held a bench trial and then

issued a decision on October 31, 1991 (Sugerman Decision). Sugerman Decision at

1-15; R.R. at 285a-99a. Judge Sugerman noted that the Trust had agreed that the

Easement permitted the erection of a single principal dwelling to replace the

Victorian House destroyed by fire. Sugerman Decision at 5-6; R.R. at 289a-90a.

Therefore, Judge Sugerman focused on the issue of whether a second dwelling was

permitted. Judge Sugerman determined that “the Easement clearly prohibits the

construction of two residential dwellings on the Baughman [Farm].” Sugerman

Decision at 10; R.R. at 294a. In reaching this decision, Judge Sugerman relied on

the Easement’s language prohibiting “new or additional buildings or structures”

unless “necessary for agricultural purposes.” Sugerman Decision at 10-11 (quoting

the Easement at 11, 14; R.R. at 1307a, 1310a); R.R. at 294a-95a. Although Mrs.

Anderson referred to the second dwelling as a “tenant house,” “tenant farmhouse,”

and “tenant farm dwelling,” she testified that she intended to use the second dwelling

for her family – initially to house her father-in-law, an obstetrician approaching

retirement. Sugerman Decision at 11-12; R.R. at 295a-96a. Judge Sugerman found

that the “second dwelling as envisioned by Mrs. Anderson” did not support the

position that it was “‘necessary for agricultural purposes,’ either in the context of the

Easement or in the light of Mrs. Anderson’s proposals.” Sugerman Decision at 12

(quoting Easement at 14; R.R. at 1311); R.R. at 296a. “[A] retired obstetrician is an

unlikely candidate for the position of ‘tenant farmer.’” Sugerman Decision at 13;

R.R. at 297a. Thus, Judge Sugerman concluded “that a second dwelling may not be

erected on the Baughman [Farm].” Sugerman Decision at 14; R.R. at 298a. Notably,

Judge Sugerman was not tasked with determining, and hence did not determine,

whether the permitted principal dwelling must be erected at the exact location of and

4

in the same architectural style as the Victorian House. Sugerman Decision at 14 n.5;

R.R. at 298a; see Trial Court Op., 7/19/16, at 2-3.

Because the Andersons’ contingency regarding the second dwelling

was not met, they did not move forward with the purchase of the Baughman Farm.

In December 1991, two months after the Sugerman Decision, Bartschi conveyed the

Baughman Farm to the Bartschi Foundation (Foundation) in fee. Trial Court Op.,

7/19/16, at 3.

A decade later, the Township asked the Foundation to restore the Mill,

which was in ruins. The Foundation lacked funding to restore the Mill and,

consequently, applied for a demolition permit instead. The Charlestown Township

Historical and Architectural Review Board held hearings on the permit application.

Trial Court Op., 7/19/16, at 3.

Following these proceedings, the Foundation and Township agreed to

subdivide the Mill from the Baughman Farm and transfer this parcel to the Township

for nominal consideration ($10) for purposes of restoring the Mill. The agreement

permitted the restoration of the Mill, but prohibited the construction of any new

structures. R.R. at 58a-60a. The Township’s engineer prepared a subdivision plan,

which the Township approved in July 2002. The subdivision plan divided CCTP

No. 35-2-74 into two parcels: (1) CCTP No. 35-2-74, which contained 35.5 acres

of land, and (2) CCTP No. 35-2-74.2, which contained 1.629 acres of land and the

Mill (Mill Lot). On July 30, 2002, the Foundation conveyed the Mill Lot to the

Township. Thereafter, the Township restored the Mill. Trial Court Op., 7/19/16, at

3-4.

In 2004, the Foundation approached the Naylors, who own an adjoining

parcel, about purchasing the remainder of the Baughman Farm (41.60 acres), i.e.,

5

the Property.6 See R.R. at 599a. The Naylors were interested, but only if they could

build a principal dwelling on the Property. To that end, the Naylors and the Trust

engaged in discussions. At some point, the Township became involved in these

discussions and developed a list of concessions that it desired in exchange for its

cooperation with the sale. Mr. Naylor withdrew from these conversations, stating

“the restrictions/demands that the [T]ownship is placing on me are too severe for me

to keep open my offer to acquire this [P]roperty from the Trust.” Trial Court Op.,

7/19/16, at 4 (quoting Kuhn Transcript, Ex. P-10 (1/10/05 email from Mr. Naylor to

Supervisor Kuhn)); see R.R. at 428a.

In 2005, the Foundation and the Naylors reopened their negotiations

and reached an agreement for the Naylors to purchase the Property for $874,000.7

On December 14, 2005, the Foundation and the Naylors entered an agreement of

sale and an addendum. Therein, the Foundation agreed to cooperate in negotiations

with the Trust relating to the construction of a dwelling on the Property. Trial Court

Op., 7/19/16, at 4.

On January 27, 2006, the Foundation conveyed the Property to the

Naylors. The Trust and the Naylors engaged in discussions about restructuring the

Easement. The Naylors’ attorney, Timothy Barnard, Esq. (Naylor Attorney), sent

the Trust a memorandum, dated July 30, 2011 and revised August 8, 2011, regarding

restructuring the Easement (Naylor Memorandum). R.R. at 474a-75a. The

6

To be clear, when we refer to the Baughman Farm, we are referring to the entire tract as

it existed when the Easement was created; when we refer to the Property, we are referring to the

remainder of the Baughman Farm (CCTP 35-2-8, 35-2-73 and 35-2-74, less the Mill Lot/CCTP

35-2-74.2), which is currently owned by the Naylors.

7

See Trial Court Op., 7/19/16, at 5. The trial court stated the purchase price was $874,000,

but the record supports a purchase price of $875,000. See R.R. at 66a; 793a.

6

Memorandum set forth certain items for clarification, including the identification of

two alternate sites on the Property to locate the dwelling. The Naylor Memorandum

confirmed that: “Two house sites have been identified and will be recorded on the

conservation plan as alternate permitted locations for the one re-built primary

residence.” Trial Court Op., 7/19/16, at 4-5 (quoting the Naylor Memorandum, ¶5

(emphasis in original)); see R.R. at 475a.

In response, the Trust prepared a “Conservation Easement Preparation

and Processing Agreement” (Processing Agreement), which the Naylors and the

Trust signed in September 2011. The Processing Agreement provided that the

structure and content of the Easement would track the Naylor Memorandum.

Pursuant to the terms of the Processing Agreement, the Naylors agreed to pay the

cost of updating the Easement and, to that end, the Naylors submitted a $5,000

retainer, which the Trust accepted. Trial Court Op., 7/19/16, at 5.

In early October 2011, Township Supervisor Kevin Kuhn (Township

Supervisor) learned of the Processing Agreement and immediately notified the Trust

of the Township’s dissatisfaction with the agreement, particularly with the Trust’s

willingness to permit the Naylors to build a dwelling on the Property. Discussions

among all of the parties ensued. Trial Court Op., 7/19/16, at 5.

By letter dated January 30, 2012, counsel for the Township, Mark

Thompson, Esq. (Township Solicitor), informed Naylor Attorney that the Easement

did not permit a dwelling to be constructed in the existing pasture or agricultural

fields of the Property. Township Solicitor expressed his belief that the location of

the Victorian House is the only area contemplated for a residential building on the

Property. Trial Court Op., 7/19/16, at 5; see R.R. at 137a.

7

In February 2012, the Foundation recorded a “Deed of Correction” for

the Property, purporting to convey to the Naylors “all and singular rights to rebuild

the historic residence formerly located on the Grantor’s property known as the

Baughman Farm (which residence was destroyed by fire) at such location as which

Grantee might be entitled, or Grantee and [the Trust] may otherwise agree . . . .”

Trial Court Op., 7/19/16, at 5 (quoting Deed of Correction at 4); see R.R. at 100a.

By email dated June 13, 2012, counsel for the Trust, George Elser, Esq.

(Trust Attorney), responded to Naylor Attorney’s questions. Trust Attorney advised

that “the Trust agreed that a house may be rebuilt and that there is no express

limitation on where the house may be built, although its location and structure must

be consistent with the conservation values expressed throughout the Easement.”

Trial Court Op., 7/19/16, at 5-6; see R.R. at 351a. “Trust Attorney further expressed

that the Trust wished to assist the Naylors and the Township in resolving their

differences regarding ownership of the building right.” Trial Court Op., 7/19/16, at

6; see R.R. at 351a. He communicated the same to Naylor Attorney and Township

Solicitor by letter dated June 14, 2012. Trial Court Op., 7/19/16, at 6; see R.R. at

351a.

“The Township quickly communicated its objection to the Trust’s

position of neutrality and urged the Trust to enforce the Easement by refusing the

Naylors permission to build.” Trial Court Op., 7/19/16, at 6. When the Trust failed

to adopt the Township’s position, Township Supervisor threatened to bring legal

action against the Trust to enforce the Easement. Id.

By letter dated September 8, 2012, Trust Attorney informed Naylor

Attorney that the Trust had reconsidered its position. As holder of the Easement, the

Trust determined that it held the responsibility to interpret the Easement and

8

concluded that the Easement did not permit the Naylors to build a house on the

Property. Trial Court Op., 7/19/16, at 6; see R.R. at 107a.

In October 2014, the Naylors instituted this action by filing a Complaint

seeking a declaratory judgment against the Township and the Trust to secure the

right to build a single-family dwelling (Replacement House) on the Property with

the trial court. Therein, the Naylors asked the trial court to make the following

declarations: (1) the “Easement allows the construction of the Replacement House

in another location on the Property,” i.e., at a site other than that of the original

Victorian House; (2) the Foundation “conveyed the right to construct the

Replacement House to the Naylors”; (3) “the Naylors have the right to construct the

Replacement House on the . . . Property”; (4) the Easement does not require the

Trust’s or the Township’s “approval of the location of the Replacement House”; (5)

“construction of the Replacement House on the . . . Property is subject only to the

applicable requirements of the Township’s Zoning Ordinance and Building Code”;

and (6) “the Township’s only role is to administratively review and process the

Naylors’ building permit application for the Replacement House.” Naylors’

Complaint at 12-13; R.R. at 25a-26a. In addition, the Naylors sought to “[e]njoin

the Township from taking any actions to interfere with the Naylors’ construction of

the Replacement House on the . . . Property,” and asked the trial court to retain

jurisdiction in order to ensure the Township’s and Trust’s compliance. Naylors’

Complaint at 13; R.R. at 26a.

In response, the Township filed an Answer with New Matter and

Counterclaim/Cross-Claim. In the Answer, the Township contested the Naylors’

request for relief. In the New Matter, the Township asserted that the Naylors’ claims

were barred and/or limited by the doctrines of estoppel, unclean hands, and laches,

9

the defense of waiver, and the Easement itself. In the Counterclaim/Cross-Claim,

the Township sought a declaratory judgment of its own against the Naylors and the

Trust under the DJA and the Conservation and Preservation Easements Act

(Easements Act).8 Specifically, the Township sought declarations that: (1) the only

location on the Baughman Farm upon which the Easement permits a Replacement

House is the site of the original Victorian House; (2) the Easement prohibits any

structure except for “buildings necessary for agricultural purposes,” to be built at

other locations on the Baughman Farm; and (3) the Deed of Correction is a “nullity.”

Township’s Answer with New Matter and Counterclaim/Cross-Claim at 15; R.R. at

122a.

The Trust filed its own Answer with New Matter, in which it also

contested the Naylors’ action and raised similar affirmative defenses as new matter.

Trust’s Answer with New Matter at 1-13; R.R. at 145a-57a. The Trust responded to

the Township’s Cross-Claim by joining in full the Township’s request for

declaratory judgment. Trust’s Reply to Township’s Counterclaim and Cross-Claim

at 1-2; R.R. at 160a-61a.

Following discovery, the parties filed cross-motions for summary

judgment. In the Naylors’ Motion for Summary Judgment, the Naylors sought

summary judgment on the grounds that: (1) the Easement permitted them to build a

Replacement House on their Property at a location other than that of the original

Victorian House; and (2) the Township should be estopped from interfering in the

Naylors’ efforts to reach an agreement with the Trust regarding the location of the

Replacement House and clarification of the Easement language. Naylors’ Motion

for Summary Judgment at 24-31; R.R. at 190a-95a.

8

Act of June 22, 2001, P.L. 390, 32 P.S. §§5051-5059.

10

In the Township’s Motion for Partial Summary Judgment, it argued that

it was entitled to judgment in its favor because: (1) the Easement permits a

Replacement House to be built only at the original location of the Victorian House;

(2) a Replacement House may be built at another location on the Property but only

with the consent of both the Township and the Trust to amend the Easement; and (3)

the Naylors never obtained the consent of the Township or the Trust to amend the

Easement to allow for construction of a Replacement House at the Naylors’ desired

location. Township’s Motion for Partial Summary Judgment at 9-13; R.R. at 498a-

502a.

In the Trust’s Motion for Summary Judgment and Judgment on the

Pleadings, the Trust claimed that neither the Easement’s language, nor the

discussions between the Naylors and the Trust regarding potential revisions to the

Easement, gave the Naylors the right to construct a Replacement House at a location

of their choosing without the assent of both the Township and the Trust. On this

basis, the Trust claimed it was entitled to judgment in its favor. Trust’s Motion for

Summary Judgment and Judgment on the Pleadings at 1-10; R.R. at 691a-700a.

On May 9, 2016, the Trust also interposed a motion to strike the

Naylors’ Motion for Summary Judgment on the basis that it was filed prematurely

before the pleadings had closed. More particularly, the Trust averred that the

Naylors failed to respond to the Trust’s outstanding New Matter. The Trust also

asserted that the Naylors’ Motion failed to conform to the Pennsylvania Rules of

Civil Procedure (Pa. R.C.P.). Trust’s Motion to Strike at 1-4; R.R. at 1643a-46a.

The parties filed responses to their opponents’ respective motions for

summary judgment. The Naylors responded to the Trust’s Motion to Strike and filed

an answer to the Trust’s New Matter. See R.R. at 1817a-25a.

11

By order dated July 7, 2016, the trial court9 denied the Trust’s Motion

to Strike the Naylors’ Motion for Summary Judgment. In a footnote, the trial court

explained that the pleadings were closed twenty days after the Trust served new

matter on the Naylors. Trial Court Order, 7/7/16, at 1 n.1 (citing Pa. R.C.P. No.

1029; Newspaper Guild of Greater Philadelphia, AFL-CIO v. Philadelphia Daily

News, Inc., 164 A.2d 215, 218 (Pa. 1960)). The trial court opined that, “when new

matter is comprised solely of legal conclusions, a response is not required.” Trial

Court Order, 7/7/16, at 1 n.1 (citing Pa. R.C.P. No. 1029(d); Gotwalt v. Dellinger,

577 A.2d 623 (Pa. Super. 1990)). Furthermore, no reply is warranted where the

factual allegations set forth in new matter are already set forth in the complaint and

answer. Trial Court Order, 7/7/16, at 1 n.1. “New matter properly contains

averments of facts only if they are extrinsic to facts averred in the complaint.” Id.

(quoting Watson v. Green, 331 A.2d 790, 792 (Pa. Super. 1974)). The trial court did

not address the Trust’s claim of procedural noncompliance. See Trial Court Order,

7/7/16, at 1 n.1.

By decision dated July 19, 2016, the trial court addressed the parties’

cross-motions for summary judgment. First, the trial court held that the Township

did not have standing to enforce the terms of the Easement because the Easement

only allowed the Trust, as grantee, to enforce its terms. Trial Court Op., 7/19/16, at

8. The trial court also found that the Township did not have standing to enforce the

terms of the Easement under the Easements Act because it was not an owner of the

Property. The trial court reasoned that to hold otherwise would run counter to

9

The Honorable Edward Griffith presided.

12

legislative intent, as well as to the Uniform Conservation Easement Act,10 and would

enable “the owner of any small parcel of property subject to a conservation easement

[to] enforce the easement over much larger parcels, which would allow for a

multiplicity of suits and easily frustrate one of the goals of the [Easements] Act,

which is to encourage the placement of land into protective easements. [Section 2

of the Easements Act,] 32 P.S. §5052.” Trial Court Op., 7/19/16, at 9. Thus, the

trial court denied the Township’s Motion for Partial Summary Judgment.

Turning to the Trust’s and Naylors’ cross-motions, the trial court

examined the intertwined questions of whether, under the Easement, a Replacement

House could only be built at the precise location of the original Victorian House, or

whether it could be built elsewhere on the former Baughman Farm, as well as which

party held “ownership” of the right to build such a residence. Trial Court Op.,

7/19/16, at 10.

Upon reviewing the Easement, the trial court found that the Easement’s

purpose was unambiguously “to preserve the rural character of the area, the scenic

quality of the farm, the diversity of wildlife in a variety of settings, and the historic

and cultural value of the property.” Trial Court Op., 7/19/16, at 13. However, the

trial court also found that “[t]he Easement was not greatly concerned with the

buildings on the farm.” Id. at 17. There was nothing in the Easement that expressly

limited where a Replacement House could be built. Id. “[T]he Easement preserves

the [Grantor-Declarant]’s right to possess and enjoy all rights and privileges

attendant to ownership of property, unless relinquished under the terms of the

Easement.” Id. at 16. This included “the right to locate a dwelling on the Baughman

10

The Uniform Conservation Easement Act is a uniform law drafted by the National

Conference of Commissioners on Uniform State Laws and approved and recommended for

enactment in all the states.

13

Farm at any location he saw fit, provided that the selected location [was] not

inconsistent with the servitude [i.e., the Easement].” Id. at 17. Construing the

agreements of sale that dealt with both the Mill Lot and the Property, the trial court

then concluded that Bartschi’s right to build a residence elsewhere on the Baughman

Farm was transferred to the Naylors. Id. at 17-19. Thus, the trial Court denied the

Trust’s Motion for Summary Judgment and Judgment on the Pleadings, and granted

partial summary judgment in favor of the Naylors as to the following issues:

a. The Easement allows for the construction of a

[Replacement House] in a location other than the

site of the Victorian House;

b. The . . . Foundation conveyed the right to construct

a [Replacement House] to the Naylors;

c. The Naylors own the right to construct a

[Replacement House] on the [P]roperty transferred

to them by [the] Foundation (Chester County

Parcels 35-2-8, 35-2-73 and 35-2-7[4]);

d. The Easement does not require the Township’s

approval of the location of the [Replacement

House] and the Township is enjoined from

interfering with enforcement of the Easement as it

relates to the Naylors’ Property (Chester County

Parcels 35-2-8, 35-2-73 and 35-2-7[4]).

Id. at 19.

The trial court noted that three issues raised by the Naylors in their

Complaint were not addressed in their Motion for Summary Judgment and, thus,

remained unresolved. Trial Court Op., 7/19/16, at 19. Specifically, these issues

included whether:

1.) [T]he Easement does not require the Trust’s approval

of a [R]eplacement [House;] 2.) the Naylors’ construction

14

of a [R]eplacement [House] is subject only to the

applicable requirements of the Township’s Zoning

Ordinance and Building Code[;] and 3.) the Township’s

only role is to administratively review and process the

Naylors’ building permit application for the

[R]eplacement [House].

Id. To address these unresolved issues, the trial court held a two-day bench trial in

May 2017, during which it reviewed a copious number of exhibits and heard

testimony from Mr. Naylor, Naylor Attorney, various expert witnesses and

representatives from the Trust.

By decision dated January 12, 2018, the trial court ruled that the

Easement neither protected the “historic structures” located on the former Baughman

Farm, nor vested the Trust with power “to approve the location, development or

construction of the [Replacement House] to be built on the [Baughman Farm], but

rather reserves the right to the Property owner,” i.e., the Naylors. Trial Court Op.,

1/12/18, at 16, 18. Consequently, the Naylors do not need the Trust’s authorization

to build the Replacement House. Furthermore, the trial court found the Trust had

already deemed two alternate locations on the Property to be compatible with the

Easement’s requirements, and held that the Easement allowed the Naylors to build

“a single family residence and associated improvements, including residence

structures, such as a detached garage, driveway, tennis court, swimming pool, shed

and equipment enclosure, as well as septic, stormwater management, etc.” at a

suitable, Easement-compliant location. Id. at 16-17.

Finally, the trial court declined to rule upon the remaining two

questions, involving the Township’s powers and responsibilities in connection with

the Naylors’ construction of their new home. Because the Naylors had not yet

applied for the necessary clearances and permits, the trial court determined that there

15

was no “real controversy” between the Naylors and the Township at that point.

Furthermore, the Naylors had not yet exhausted their administrative remedies. Trial

Court Op., 1/12/18, at 17-18.

Thereafter, the Trust filed a Motion for Post-Trial Relief, which the trial

court denied on April 11, 2018.11 Upon praecipe, judgment was entered in favor of

the Naylors on April 19, 2018. See Pa. R.C.P. No. 227.4(2) (stating that the

prothonotary shall enter judgment upon praecipe “when a [trial] court grants or

denies relief but does not itself enter judgment or order the prothonotary to do so”).

The Township and the Trust then both filed appeals, which we consolidated.

II. Issues

In these consolidated appeals,12 the Township and the Trust raise a mix

of procedural and substantive questions.13 Procedurally, the Township and the Trust

both argue that the trial court erred as a matter of law by concluding that the

Township lacked standing to enforce the Easement. They claim that the Township,

as a fee simple owner of a portion of the former Baughman Farm burdened by the

Easement, has standing to object to a modification to another parcel subject to the

11

Because the trial court dismissed the Township’s claims at the summary judgment stage,

the Township was precluded from filing post-trial motions. See Pa. R.C.P. No. 227.1(c) Note (“A

motion for post-trial relief may not be filed to orders disposing of . . . motions for judgment on the

pleadings or for summary judgment . . . .”).

12

Appellate review of an order granting summary judgment is limited to determining

whether the trial court committed an abuse of discretion or an error of law. Weaver v. Lancaster

Newspapers, Inc., 926 A.2d 899, 902 (Pa. 2007). Where a challenge raises a question of law, such

as standing or jurisdiction, our standard of review is de novo, and our scope of review is plenary.

In re Hickson, 821 A.2d 1238, 1242 (Pa. 2003).

13

We have rearranged the sequence of issues and arguments for ease of discussion.

16

same Easement. In addition, the Trust contends the trial court lacked jurisdiction

over the subject matter of this dispute because it involves the Trust’s interpretation

of a document and rights vested therein, which falls within the exclusive jurisdiction

of the Orphans’ Court of Chester County. The Trust also argues that the trial court

erred by denying its Motion to Strike the Naylors’ Motion for Summary Judgment

as untimely filed.

Substantively, the Township argues that the trial court erred by not

concluding that the Naylors’ claims were barred by the doctrine of collateral

estoppel. The Township maintains that the doctrine of collateral estoppel prohibits

the relitigation of issues previously resolved in the Sugerman Decision. The Trust

separately frames this issue asserting that the trial court failed to adhere to the legal

doctrines of the law of the case and coordinate jurisdiction.

Next, the Township and the Trust argue that the trial court erred by

entering summary judgment in favor of the Naylors and allowing them to construct

a Replacement House on the Property for several reasons. First, the Township and

Trust argue that summary judgment is inappropriate here because material facts are

in dispute, namely, the location of the Victorian House. Second, they contend the

trial court erred by allowing the Naylors to construct a Replacement House on their

Property at a location other than the destroyed Victorian House arguing that this is

at odds with the Easement and the Easements Act. Third, they maintain that the

right to rebuild was extinguished with the subdivision of Baughman Farm. Fourth,

they challenge the trial court’s declaration that the Naylors are not limited to the

footprint of the Victorian House and may construct a Replacement House in the

style, size, configuration and construction of their choosing along with infrastructure

and accessory structures. Finally, the Trust contends that the trial court erred by

17

permitting the Naylors to construct a Replacement House in the style and location

of their choosing without any governance or approval required by the Trust or

Township.14, 15

III. Discussion

A. Procedural Issues

1. Township Standing

First, the Township and the Trust both argue that the trial court erred

by ruling that the Township did not have standing to enforce the Easement. Both

parties maintain that the Township, as a fee simple owner of the Mill Lot burdened

by the same Easement, has statutory standing to challenge a violation of that

Easement. In support, they rely on Section 5(a)(1) of the Easements Act, 32

P.S. §5055(a)(1), as authority. In addition, the Township further claims that it has

standing under subsections (2) and (3) as well as the right to enforce the Easement

as a third party under subsection (5) of Section 5(a) of the Easements Act, 32

P.S. §5055(a)(2), (3), (5).

The Easements Act identifies persons who have standing to bring legal

action to enforce an easement. Schwartz v. Chester County Agricultural Land

14

Rule 2137 of the Pennsylvania Rules of Appellate Procedure states: “In cases involving

more than one appellant or appellee, including cases consolidated for purposes of the appeal

pursuant to Rule 513 (consolidation of multiple appeals), any number of either may join in a single

brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties

may similarly join in reply briefs.” Pa. R.A.P. 2137. Based on the foregoing, the Trust adopted

the Township’s interpretation of the Easement, the Township’s position on standing, and “all

grounds for reversing” the trial court. Trust’s Brief at 16. The Trust also adopted by reference

any supporting arguments set forth in the Township’s Reply Brief. Trust’s Reply Brief at 17. In

turn, the Township specifically joined in the Trust’s arguments regarding the location limitations

of the Replacement House and interpretation of the Easement. Township Brief at 35-36.

15

The Pennsylvania Land Trust Association filed an amicus curiae brief in support of the

positions advanced by the Trust and Township.

18

Preservation Board, 180 A.3d 510, 514 (Pa. Cmwlth. 2018). Specifically, Section

5(a) of the Easements Act provides:

(a) Persons who have standing.—A legal or equitable

action affecting a conservation or preservation easement

may only be brought by any of the following:

(1) An owner of the real property burdened by the

easement.

(2) A person that holds an estate in the real property

burdened by the easement.

(3) A person that has any interest or right in the real

property burdened by the easement.

(4) A holder of the easement.

(5) A person having a third-party right of

enforcement.

(6) A person otherwise authorized by Federal or

State law.

(7) The owner of a coal interest in property

contiguous to the property burdened by the easement or of

coal interests which have been severed from the ownership

of the property burdened by the easement.

32 P.S. §5055(a) (emphasis added).

However, the Township does not fall within any of these categories.

Although the Township’s Mill Lot and the Property were once part of the former

Baughman Farm and are burdened by the same Easement, the Mill Lot and the

Property are two independent and distinct parcels of land and have been since the

Baughman Farm was subdivided in 2002. The Township does not have standing

19

under subsections 5(a)(1), (a)(2), or (a)(3) of the Easements Act when it neither

owns, holds an estate in, or otherwise holds an interest or right in the Property.

As for the Township’s argument that it has standing under subsection

5(a)(5), this claim also fails. Section 3 of the Easements Act defines “[t]hird-party

right of enforcement” as “[a] right provided in a conservation easement to enforce

any of its terms, granted to a governmental body, charitable corporation, charitable

association or charitable trust, which, although eligible to be a holder, is not a

holder.” 32 P.S. §5053. Under the terms of the Easement, only the Trust has the

right to enforce the Easement. Easement at 14-15; R.R. at 1311a-12a. The Trust

never formally conveyed its enforcement right to the Township. The mere fact that

the Trust joined some of the Township’s arguments before the trial court does not

imbue the Township with its claimed “de facto” third-party right of enforcement.

See Township Brief at 30. We, therefore, conclude that the trial court did not err in

holding that the Township does not have standing in this matter.

2. Subject Matter Jurisdiction

Next, the Trust claims that the trial court lacked subject matter

jurisdiction to hear the Naylors’ declaratory judgment action. The Trust asserts that

matters such as this belong within the exclusive jurisdiction and expertise of the

Orphans’ Court of Chester County.

Despite its current jurisdictional objections, the Trust never requested

to have the Naylors’ action transferred to Orphans’ Court when it was before the

trial court. While the issue of subject matter jurisdiction is not waivable, see

Blackwell v. State Ethics Commission, 567 A.2d 630, 636 (Pa. 1989), “the proper

selection of a division within the court of common pleas is not a jurisdictional

20

question . . . .” Sto-Rox Focus on Renewal Neighborhood Corp. v. King, 398 A.2d

241, 242-43 (Pa. Cmwlth. 1979). The Trust’s argument is little more than an attempt

to forum shop after the fact between divisions of coordinate jurisdiction, which we

will not entertain.

3. Motion to Strike

In addition, the Trust contends that the trial court erred by denying its

Motion to Strike the Naylors’ Motion for Summary Judgment as untimely.

According to the Trust, the Naylors filed their Motion for Summary Judgment

prematurely, before the pleadings had closed. Specifically, the Naylors filed their

Motion on April 8, 2016, without addressing the New Matter raised by the Trust on

December 19, 2014. The Naylors did not file an Answer to the Trust’s New Matter

until May 20, 2016 – well after the 20-day period in which to do so had closed.

Consequently, the pleadings were not closed when the Naylors filed their Motion for

Summary Judgment.

Pa. R.C.P. No. 1035.2 governs motions for summary judgment and

provides:

After the relevant pleadings are closed, but within such

time as not to unreasonably delay trial, any party may

move for summary judgment in whole or in part as a

matter of law

(1) whenever there is no genuine issue of any

material fact as to a necessary element of the cause of

action or defense which could be established by additional

discovery or expert report, or

(2) if, after the completion of discovery relevant to

the motion, including the production of expert reports, an

adverse party who will bear the burden of proof at trial has

21

failed to produce evidence of facts essential to the cause

of action or defense which in a jury trial would require the

issues to be submitted to a jury.

Pa. R.C.P. No. 1029(a) provides: “A responsive pleading shall admit or deny each

averment of fact in the preceding pleading or any part thereof to which it is

responsive.” However, “[a]verments in a pleading to which no responsive pleading

is required shall be deemed to be denied.” Pa. R.C.P. No. 1029(d). This includes

conclusions of law. Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205,

1219 (Pa. Cmwlth. 2018).

Here, the Naylors filed their Motion for Summary Judgment without

first responding to the Trust’s New Matter. Although it appears at first blush that

the pleadings were in fact still open, upon closer examination of the pleadings, the

Trust did not introduce new statements of fact. The Trust’s New Matter reads as

follows:

47. [The Trust’s] answers to paragraphs 1 through 46

are incorporated by reference as though fully set forth at

length.

48. [The Naylors’] claims are barred and/or limited by

the doctrine of estoppel.

49. [The Naylors’] claims are barred and/or limited by

the doctrine of unclean hands.

50. [The Naylors’] claims are barred and/or limited by

the doctrine of laches.

51. [The Naylors’] claims are barred by the doctrine of

merger.

52. [The Naylors’] claims are barred by the statute of

frauds.

22

53. [The Naylors’] claims are barred and/or limited by

the defense of waiver.

54. The . . . Easement is governed by the . . . Easements

Act[,] which requires liberal construction in favor of the

grants contained therein to effect the purposes of the

easements. 32 P.S. §5055(c)(2).

55. [The Naylors’] claims are barred and/or limited by

the . . . Easement and its clear prohibition against any

other structure being constructed on [CCTP] Nos. 35-2-8,

35-2-73, 35-2-74, and 35-2-74.2 except for buildings

necessary for agricultural purposes, which does not

include a home or dwelling.

56. [The Naylors’] claims are barred and/or limited

because the . . . Foundation had no right to construct a

dwelling [on] [CCTP] No. 35-2-74[;] the . . . Foundation

did not possess the ability to convey that right to the

[Naylors].

57. [The Naylors’] claims are barred and/or limited

because other than rebuilding the historic dwelling on the

property owned by the Township, the right to build on [the

Naylors’] property was conveyed away by the previous

owner of that property (prior to the . . . Foundation), and

cannot be resurrected by [the Naylors] through the filing

of a “Deed of Correction” or any other conveyance by the

. . . Foundation.

Trust’s Answer with New Matter, 12/19/14, at 12-13; R.R. at 156a-57a.

Upon review, Paragraphs 47 through 54 are legal conclusions, and, as

such, they are deemed denied without formal response. See Pa. R.C.P. No. 1029(d);

Phantom Fireworks, 198 A.3d at 1219. Although paragraphs 55 through 57 contain

factual averments, these averments essentially challenge the Naylors’ already-

articulated claim that they have the right, under the terms of both their agreement of

sale with the Foundation and the Easement itself, to build a residence at another

Easement-compliant spot on the Property without the Trust’s advance permission.

23

See Naylors’ Complaint at 9-11; R.R. at 23a-25a. Thus, the Trust’s averments do

not contain “new” statements of fact, but are “merely responsive to the averments of

[the Naylors’] [C]omplaint and, under our rules of procedure[,] should have been set

forth in the answer.” Saxe v. Feinstein, 77 A.2d 419, 421 (Pa. 1951); see Watson,

331 A.2d at 792 (“New matter properly contains averments of facts only if they are

extrinsic to facts averred in the complaint.”). Thus, we conclude that the trial court

did not err by denying the Trust’s Motion to Strike.

B. Substantive Issues

1. Collateral Estoppel, Law of the Case & Coordinate Jurisdiction

Turning to the substantive issues, the Trust, having adopted the

Township’s arguments in this regard,16 argues that the Naylors’ claims in this matter

are barred by the doctrine of collateral estoppel. The Trust maintains that the

Naylors’ claims were previously litigated and disposed of in the Sugerman Decision.

Judge Sugerman analyzed the subject Easement and Property and opined that the

purpose of the Easement was to maintain the Baughman Farm as it existed when the

Easement was conveyed and did not permit the erection of “additional buildings or

structures . . . except as may be necessary for agricultural purposes.” Sugerman

Decision at 12; R.R. at 296a. Under the doctrine of collateral estoppel, the Naylors

are bound by this decision and may not relitigate these claims.

In addition, the Trust asserts that the trial court was required to adhere

to the Sugerman Decision under the legal doctrines of law of the case and coordinate

16

The collateral estoppel issue was raised and fully developed by the Township, not the

Trust. Having determined that the Township lacks standing, ordinarily, we would not address the

Township’s substantive challenges on appeal. See Society Hill Civic Association v. Pennsylvania

Gaming Control Board, 928 A.2d 175, 177 (Pa. 2007). However, because the Trust incorporated

and adopted the Township’s arguments pursuant to Pa. R.A.P. 2137 and has standing to raise this

issue, the issue remains viable.

24

jurisdiction. The Sugerman Decision was issued by a court of coordinate jurisdiction

and represents the law of the case in this matter. Consequently, the trial court was

not permitted to depart from Judge Sugerman’s interpretation of the Easement in its

decision.

The doctrine of collateral estoppel precludes relitigation of an issue

settled in a previous action if:

(1) the issue decided in the prior case is identical to the one

presented in the later action; (2) there was a final

adjudication on the merits; (3) the party against whom the

plea is asserted was a party or in privity with a party in the

prior case; (4) the party or person privy to the party against

whom the doctrine is asserted had a full and fair

opportunity to litigate the issue in the prior proceeding;

and (5) the determination in the prior proceeding was

essential to the judgment.

Office of Disciplinary Counsel v. Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005).

The doctrine of “law of the case” sets forth various rules that embody

“the concept that a court involved in the later phases of a litigated matter should not

reopen questions decided by another judge of that same court or by a higher court in

the earlier phases of the matter.” Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa.

1995). “However, this doctrine applies only when a court is later asked to consider

the same question decided by another court of equivalent or higher jurisdiction.”

Commonwealth v. Wright, 14 A.3d 798, 817 (Pa. 2011) (emphasis added). The

related doctrine of coordinate jurisdiction provides that judges of equal jurisdiction

sitting in the same case should not overrule each other’s decisions. Ario v. Reliance

Insurance Co., 980 A.2d 588, 597 (Pa. 2009); Starr, 664 A.2d at 1331.

Upon review, the doctrines of collateral estoppel, law of the case and

coordinate jurisdiction do not apply because the issues involved here were not before

25

Judge Sugerman. The issue before Judge Sugerman was whether the landowner

could erect “two dwellings upon the Baughman [Farm],” namely, “a principal

dwelling and an associated tenant house.” Sugerman Decision at 4, 6 (emphasis

added); R.R. at 286a, 290a. Judge Sugerman determined that “the Easement clearly

prohibits the construction of two residential dwellings” on the Baughman Farm.

Sugerman Decision at 10 (emphasis added); R.R. at 294a. Ultimately, he declared

that the Easement did “not permit the construction or erection of a second separate

dwelling upon the Baughman [Farm].” Sugerman Decision at 15 (emphasis added);

R.R. at 299a. However, Judge Sugerman never resolved the issues of whether one

residential dwelling must be located in the exact same spot at the Victorian House

or replicated in the style of the Victorian House.17

Notwithstanding, the Trust argues that the parties and trial court are

bound by Judge Sugerman’s interpretation of the Easement. In this regard, Judge

Sugerman opined:

It is quite clear from the many recitals in the Easement that

the overriding purpose or object of the Easement was to

maintain the Baughman [Farm] in its physical condition at

the date the Easement was granted: a Victorian dwelling,

a mill and a barn, and the remainder of the Baughman

[Farm] as open space.

17

Judge Sugerman noted:

We have not been requested to and thus do not decide the questions

of (1) whether the Victorian [House] formerly on the Baughman

[Farm] may be restored only in the same configuration and style as

heretofore, and (2) whether the said dwelling may only be erected at

the location where the earlier dwelling was located.

Sugerman Decision at 14, n.5; R.R. at 298a.

26

Sugerman Decision at 12; R.R. at 296a. However, this passage had no bearing on

Judge Sugerman’s determination that a second dwelling was not permitted under the

Easement. Consequently, it was not “essential” to the judgment. Judge Sugerman’s

discussion in this regard constitutes nonbinding dicta. Therefore, we conclude that

the doctrine of collateral estoppel does not apply. Because the trial court did not

“reopen questions” previously decided by another judge of the same court in an

earlier phase of the matter, the doctrines of law of the case and coordinate

jurisdiction are similarly inapplicable.

2. Summary Judgment – Disputed Fact

Next, the Trust argues that summary judgment was inappropriate

because a genuine issue of material fact remains unresolved and in dispute.

Specifically, there is no agreement among the parties regarding the location of the

Victorian House. There is conflicting evidence in the record as to where exactly the

Victorian House was located on the former Baughman Farm. It is unclear whether

the Victorian House was entirely on the Property, entirely on the Mill Lot, or

straddled the two. The Trust argues that the location of the Victorian House is

critical to the outcome.

“Summary judgment is appropriate in cases ‘where there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of

law.’” Maas v. UPMC Presbyterian Shadyside, 234 A.3d 427, 436 (Pa. 2020)

(quoting Nicolaou v. Martin, 195 A.3d 880, 891 (Pa. 2018); accord Pa. R.C.P. No.

1035.2(1)). “A fact is material only if it directly affects the disposition of a case.”

Pyeritz v. Commonwealth, 956 A.2d 1075, 1079 (Pa. Cmwlth. 2008) (quoting Allen

v. Colautti, 417 A.2d 1303, 1307 (Pa. Cmwlth. 1980)), aff’d, 32 A.3d 687 (Pa. 2011).

27

Although the location of the original Victorian House is uncertain and

the parties dispute its whereabouts, the exact location of the Victorian House is

material only if the Easement limited the location of a Replacement House to that

exact location. For the reasons that follow, we conclude that the trial court did not

err or abuse its discretion in determining that this fact was not material to the

disposition of the case.

3. Location of the Replacement House

Turning to the crux of the matter, the Trust argues that the trial court

erred by granting partial summary judgment to the Naylors with regard to the right

to rebuild a Replacement House at a location of their choosing that does not violate

the Easement. According to the Trust, the Easement does not permit a single-family

dwelling to be constructed anywhere other than the location of the former Victorian

House. Although the Easement did not contemplate the destruction of the Victorian

House, the Easement prohibits any new buildings unless necessary for agricultural

purposes. The clear purpose of the Easement is to preserve the Baughman Farm as

it existed when the Easement was created and its pastoral setting and scenic views.

Under the Easements Act, the Easement must be liberally construed to effectuate the

purpose of the Easement. When viewed in this context, the only place that a

Replacement House could logically be constructed is the site of the former Victorian

House. By permitting the Naylors to build a new Replacement House at any another

location, the trial court directly contravened both the restrictive language and the

purpose of the Easement in violation of the Easements Act.

28

a. Easement Construction

We must first address whether construction of this Easement is guided

by the Easements Act or by the common law. When the General Assembly enacted

the Easements Act in 2001, it “recognized the importance and significant public and

economic benefit of conservation and preservation easements in its ongoing efforts

to protect, conserve or manage the use of the natural, historic, agricultural, open

space and scenic resources of this Commonwealth.” Section 2 of the Easements Act,

32 P.S. §5052. The General Assembly instructed: “Any general rule of construction

to the contrary notwithstanding, conservation or preservation easements shall be

liberally construed in favor of the grants contained therein to effect the purposes of

those easements and the policy and purpose of [the Easements Act].” Section 5(c)(2)

of the Easements Act, 32 P.S. §5055(c)(2) (emphasis added). However, the

Easements Act may not be applied retroactively where doing so “contravenes the

Constitution of the United States or laws of the United States or of this

Commonwealth.” Section 7(b) of the Easements Act, 32 P.S. §5057(b).

The subject Easement was created in 1986, 15 years before the

Easements Act went into effect in 2001. In this proceeding, the Trust advances a

liberal interpretation of the Easement that would augment the rights conveyed in

favor of the grant and diminish the rights reserved thereunder. Applying the

Easements Act’s liberal construction analysis in this manner would create a

significant impairment of contract, which is contrary to the federal and state

constitutions. See Association of Settlement Companies v. Department of Banking,

977 A.2d 1257 (Pa. Cmwlth. 2009) (analysis of impairment of contract issues under

both U.S. and Pennsylvania Constitutions). Therefore, we shall review the Easement

under the common law rules of construction, which are the same rules applicable to

29

contract interpretation. Zettlemoyer v. Transcontinental Gas Pipeline Corp., 657

A.2d 920, 924 (Pa. 1995).

Under contract law, the fundamental rule of construction is determining

the intention of the parties as manifested by the language of the written instrument.

Id.; Unit Vending Corp. v. Lacas, 190 A.2d 298, 300 (Pa. 1963). “Such intention [of

the parties] is determined by a fair interpretation and construction of the grant and

may be shown by the words employed construed with reference to the attending

circumstances known to the parties at the time the grant was made.” Zettlemoyer,

657 A.2d at 924 (quoting Lease v. Doll, 403 A.2d 558, 561 (Pa. 1979)). “[T]he court

will adopt the interpretation, which under all of the circumstances of the case,

ascribes the most reasonable, probable and natural conduct of the parties, bearing in

mind the objects manifestly to be accomplished.” Unit Vending, 190 A.2d at 300.

Where the words of the contract are clear and unambiguous, the intent

of the parties must be determined exclusively from the agreement itself. Suffolk

Construction Co. v. Reliance Insurance Co., 221 A.3d 1205, 1210 (Pa. 2019). The

court is required to give effect to that language. Id. Words not defined are given

their plain and ordinary meaning. Id. at 1212-13; Riccio v. American Republic

Insurance Co., 705 A.2d 422, 426 (Pa. 1997). Only where the language of the

written contract is ambiguous, may extrinsic or parol evidence be considered to

determine the intent of the parties. Suffolk, 221 A.3d at 1214.18 Thus, we begin by

18

A contract will be found to be ambiguous:

[I]f, and only if, it is reasonably or fairly susceptible of different

constructions and is capable of being understood in more senses than

one and is obscure in meaning through indefiniteness of expression

or has a double meaning. A contract is not ambiguous if the court

can determine its meaning without any guide other than a knowledge

(Footnote continued on next page…)

30

examining the Easement itself, which is “the polestar of our inquiry.” Schwartz, 180

A.3d at 514.

b. Easement

The Easement devotes nine pages to whereas recitals recognizing the

rural, scenic, historic and cultural value of the Baughman Farm and surrounding

Pickering Creek Valley. To wit:

WHEREAS, the Pickering Valley is still rural and

relatively free from over-development and commercial or

industrial intrusion and is of high scenic quality.

WHEREAS, the [Baughman Farm] is partly in open tilled

fields and pasture, partly wooded, partly grown up with

small trees and bushes which create fine wildlife and bird

cover, with topography including some floodplain and

also some high water table or wet areas; and

...

WHEREAS, the [Baughman Farm] lies in the area

recommended for preservation in the Report [titled

“Pickering Creek Valley: A Preservation Opportunity”] as

a Critical Environmental Preservation District, high in

historic and cultural values, and also designated in the

Report as possessing high scenic quality, and within a

Scenic Corridor as designated by the Report; and

of the simple facts on which, from the nature of language in general,

its meaning depends; and a contract is not rendered ambiguous by

the mere fact that the parties do not agree upon the proper

construction.

Commonwealth State Highway and Bridge Authority v. E.J. Albrecht Co., 430 A.2d 328, 330

(Pa. Cmwlth. 1981) (quoting 8 P.L.E. CONTRACTS §146 (1971)) (emphasis added). The parties

do not argue that the Easement is ambiguous. Upon review, we agree that the Easement is not

ambiguous.

31

WHEREAS, the [Baughman Farm] is in Charlestown

Township, which is noted for its scenic beauty and historic

values; and

WHEREAS, all the buildings on the [Baughman Farm] are

on the National Register of Historic Places and are part

of the Charlestown National Historic District; and

WHEREAS, one of such buildings is an historic water[-]

powered mill, first used as a fulling mill and later a grist

and cider mill and the dwelling house on the

[Baughman Farm] is a classic example of Victorian

architecture[.]

Easement at 2-3 (emphasis added); R.R. at 1298a-99a.

The Easement describes the Grantor-Declarant’s desire to preserve the

“agricultural, historic, scenic and relatively natural state of the [Baughman Farm]

and further desires to conserve and protect the scenic nature of the [Baughman

Farm].” Easement at 4; R.R. at 1301a. The Grantor-Declarant also expressed his

desire to preserve the “surrounding lands from soil erosion, water pollution, natural

disruptions, visual intrusion and other occurrences which might interfere with the

beauty and unique character of the [Baughman Farm] as it exists in its relatively

natural, scenic, historic and agricultural state . . . .” Easement at 4; R.R. at 1300a.

The Easement provides the following particulars:

I. Water and Water Supply

II. Scenic Enjoyment of the General Public

The [Baughman Farm] is in full view from several well[-

]traveled public roads one of which passes through it and

bisects it and the others adjoin it or pass near it. The views

from these public roads and from the lands open to the

public which adjoin or lie near the [Baughman Farm] give

fine panoramas across the gently sloping fields, meadows

and woodlands of the [Baughman Farm], across the

32

Pickering Creek and looking upward across the lowlands

and rising slopes to wooded ridges on the north, east and

south of the [Baughman Farm] which are strong features

of the local landscape. From all directions, the prospect is

scenic and beautiful. In addition, the historic buildings on

the [Baughman Farm] are most attractive examples of 19th

century architecture of both wooden and stone

construction.

III. Protection of the Natural Habitat or Ecosystem of

Wildlife, Plants and Fish

(a) Wooded Area . . . .

(b) Wildlife. . . .

(c) Fish Life. . . .

(d) The fields and pastures also provide feed for

animals and birds and a relatively natural habitat.

IV. Public Recreation and Education

Pickering Creek affords recreational fishing to the

general public. Members of the public driving on

the public roads can get a charming view of a 19th

century farm setting.

V. Preservation of Farmland

...

VI. County Planning for Open Space and Recreation

Easement at 5-7 (emphasis in original); R.R. at 1302a-04a.

The stated purpose of the Easement is:

preserving the beauty and unique character of the

[Baughman Farm], and its environs as they exist in their

historic, scenic, agricultural and relatively natural state,

subject to the qualifications hereinafter set forth, and of

conserving and protecting the [Baughman Farm] and

surrounding lands from any natural disruptions or other

occurrences which might interfere with the same,

including, without limitation, soil erosion, water pollution

33

and visual disruptions or intrusions in or upon the general

scene as viewed from the roads which pass nearby or run

through the [Baughman Farm], or from surrounding

public and protected areas.

Easement at 10 (emphasis added); R.R. at 1307a. In order to accomplish this intent,

the Grantor-Declarant agreed that the Baughman Farm “shall remain in its present

relatively natural and scenic state subject to the qualifications hereinafter mentioned,

and shall not be the subject of residential (except as hereinafter provided), industrial

or commercial development (except farming).” Easement at 10 (emphasis added);

R.R. at 1307a.

In furtherance thereof, Grantor-Declarant imposed the following

restrictions:

A. No industrial or commercial activities, with the

exception of farming, or the operation of the aforesaid

mill, shall be conducted or permitted on the [Baughman

Farm];

B. No new or additional buildings or structures (as

hereinafter defined) shall be built and maintained on the

[Baughman Farm].

...

D. No signs, billboards or outdoor advertising structure

shall be displayed on the [Baughman Farm] other than one

sign not exceeding four feet by six feet for [limited

enumerated purposes] . . . .

E. There shall be no depositing or dumping of solid or

liquid refuse, waste or junk upon the [Baughman Farm],

excepting effluent from buildings and structures permitted

hereby . . . .

34

Easement at 12-13 (emphasis added); R.R. at 1309a-10a. Section C of the Easement

defined the following terms:

(1) “Farming” shall include the commercial production of

any and all plant and animal products, including Christmas

trees, and the breeding, raising, using, maintaining or sale

of any livestock including horses, mules and donkeys.

(2) “Building” and “structure” shall include the ordinary

usage of the words[,] as well as asphalt or concrete roads,

driveways and parking lots, mobile homes, (meaning

transportable dwellings intended for permanent or semi-

permanent occupancy or office or place of assembly, but

not including recreational trailers), pipelines, drainage

swales, poles, or any other facilities normally used in

supplying utilities or removing effluent or surface water;

provided, however, that the restrictions in this [Easement]

as to buildings and structures shall not apply to structures

or facilities for the use or benefit of the general public or a

portion thereof other than the Grantor-Declarant, Trust,

and their or its respective heirs, devisees, executors,

administrators, successors or assigns or any person

holding by, through or under them or any of them, which

structures or facilities are acquired or constructed by the

United States, the Commonwealth of Pennsylvania or any

political subdivision or municipality thereof, or any other

public agency having or performing governmental

functions, or by any private or public corporation having

or using the power of eminent domain whether such

acquisition or construction shall be made under such

power or by private treaty, other contract, or otherwise.

Easement at 11-12; R.R. at 1308a-09a.

The parties to the Easement agreed that “the following uses and

practices of and on the [Baughman Farm], though not an exhaustive recital of

consistent uses and practices,” are permitted:

(a) To pasture and graze livestock and to continue

agricultural activity on the [Baughman Farm] . . . [;]

35

(b) Subject to sub-paragraph (a) above, to institute and

carry on any agricultural activity . . . [;]

(c) To develop and maintain those water resources on

the [Baughman Farm] . . . [;] [and]

(d) Subject to all the limitations stated elsewhere in this

[Easement,] to maintain and repair fences, buildings and

other improvements on the [Baughman Farm] and to

place upon the [Baughman Farm] those additional fences,

buildings and other improvements as may be necessary for

agricultural purposes, all in consonance with Paragraphs

C [(definition of “farming,” “building” and “structure”)]

and D above [(advertising)][.]

Easement at 13-14 (emphasis added); R.R. at 1310a-11a.

Finally, the Easement reserved certain rights in the Grantor-Declarant,

its servants, successors or assignees. Specifically,

I. Nothing herein shall be construed as a grant to the

general public or to a person or persons other than Grantee,

its servants, successors or assigns or its duly authorized

agents, of the right to enter upon the [Baughman Farm].

Grantor-Declarant reserves unto himself and his

successors in title to the [Baughman Farm], all rights,

privileges, powers and immunities in respect to the

[Baughman Farm], including, without limitation, the right

of exclusive possession and enjoyment subject only to the

restrictions and easements set forth in, and the terms and

covenants of, this Grant and Declaration.

Easement at 15 (emphasis added); R.R. at 1312a.

c. Location

Although the Easement did not contemplate the destruction of the

Victorian House, it did account for the maintenance and repair of buildings.

Easement at 14; R.R. at 1311a. The parties agree that this language embraced the

36

right to replace the Victorian House on the Baughman Farm, but the question

remains where the new house may be built.

Applying the foregoing principles of construction and based on our

review of the Easement, we discern no restriction, either directly or by inference,

limiting the location for a Replacement House to the site of the former Victorian

House. The Easement identifies only two buildings – the Victorian House and the

Mill. When the Easement was executed, one additional building existed on the

Baughman Farm, but it was not identified by name in the Easement.19 Notably, the

Easement does not identify the locations of any of the buildings on the Baughman

Farm by “words, plans, drawings, or otherwise.” Trial Court Op., 7/19/16, at 17.

As the trial court found, “[t]he Easement was not greatly concerned with the

buildings on the farm.” Id.

While the Easement clearly restricts additional dwellings, it does not

restrict the addition of all new buildings. Indeed, the Easement permits the addition

of “fences, buildings and other improvements as may be necessary for agricultural

purposes.” Easement at 14 (emphasis added); R.R. at 1311a. This would include a

barn to house livestock or store hay, an equipment shed, a grain silo, a greenhouse,

a chicken coop, or any myriad of agricultural buildings. The Easement does not

direct or expressly restrict where any of the agricultural buildings or improvements

may be placed on the Baughman Farm. The Easement merely provides that the

erection of such buildings are “subject to all limitations stated elsewhere” and must

be “in consonance” of paragraphs C (definitions of “farming,” “building” and

“structure”) and D (advertising) of the Easement. Easement at 13-14; R.R. at 1310a-

19

The additional building is a stone and wood barn located on the Property, which the

Naylors have since restored. R.R. at 1860a-64a.

37

11a. Such limitations include protecting water, soil, natural habitats and ecosystems;

preserving the public’s scenic enjoyment; maintaining open space; preserving

farmland; and protecting the relatively natural state of the Baughman Farm. We

conclude that the same limitations apply to the location of the Replacement House.

Such limitations do not restrict the location of a Replacement House to the exact

situs of the Victorian House. Consequently, the exact location of the Victorian

House is immaterial. See Pyeritz, 956 A.2d at 1079.

While we understand the Trust’s concerns that some locations may be

less harmonious with the Easement’s objectives than others, the Trust reviewed two

proposed locations submitted by the Naylors to build the Replacement House.20

According to the record, the Trust acknowledged that the proposed alternate

locations were sited sensitively to preserve the historic nature of the Baughman Farm

consistent with the Easement’s servitude.21 See R.R. at 267a, 349a, 474a-75a, 2087a-

20

The Naylors have expressed the desire to have the building reservation sited sensitively

to preserve the historic nature of the Baughman Farm, its viewsheds and best pasturelands. R.R.

at 1871, 1887a. Some locations were unsuitable because of natural impediments such as wetlands,

steep slopes and trees. R.R. at 267a-68a. Other locations were eliminated because of the Naylors’

desire to preserve the best pastureland for grazing livestock, which presently include Scottish

Highland cows. R.R. at 1859a, 1867a, 1879a-80a.

21

Mr. Naylor testified regarding both sites. Mr. Naylor preferred one site over the other

and explained his preference. The preferred site is close to the restored barn, which “fits in more

with a farm style. A farmer wouldn’t build his house, you know, 1,000 feet away from the barn.

He would build it closer to the barn.” R.R. at 1879a. Mr. Naylor uses the barn to provide protection

for his cows in the winter months. R.R. at 1860a. At the preferred location, “the driveway is

already cut by the barn, so it’s easy to take that driveway up the hill and the driveway wouldn’t

necessarily have to be windy like it’s shown on the map. It could be straight and take up much

less pastureland.” R.R. at 1879a-80a. In addition, this location would preserve the best pastureland

for grazing livestock. R.R. at 1881a. The preferred site has limited views from Church Road

because of existing foliage and the Naylors propose to plant trees to obscure the Replacement

House and minimize any visual intrusion from the Charlestown Road view. R.R. at 1880a. This

location also does not contemplate the removal of any existing trees. Id.

38

88a; see also 1869a-71a. Because the Trust’s determination regarding the suitability

of two proffered locations is not contrary to the Easement’s plain language, the trial

court did not err in determining that the Trust is estopped from challenging the

suitability of these locations.

4. Right to Rebuild Extinguished

Notwithstanding, the Trust argues that the right to rebuild a

Replacement House was conveyed away when the Baughman Farm was subdivided

into the Property and Mill Lot. Consequently, the Trust maintains that the right to

rebuild on the Property was completely extinguished and cannot be resurrected.

“[T]he grantor of a conservation easement retains ownership of the

servient land and may use the property for any purpose not inconsistent with the

servitude.” Ephrata Area School District v. County of Lancaster, 886 A.2d 1169,

1177 (Pa. Cmwlth. 2005), rev’d on other grounds, 938 A.2d 264 (Pa. 2007). The

Restatement (Third) of Property, Servitudes §4.9 (American Law Institute 2000)

states: “except as limited by the terms of the servitude . . . the holder of the servient

estate is entitled to make any use of the servient estate that does not unreasonably

interfere with enjoyment of the servitude.”

In the Easement, the Grantor-Declarant reserved unto himself and his

successors in title to the Baughman Farm:

[A]ll rights, privileges, powers and immunities in respect

to the [Baughman Farm], including, without limitation, the

right of exclusive possession and enjoyment subject only

to the restrictions and easements set forth in, and the terms

and covenants of, this [Easement].

39

Easement at 15 (emphasis added); R.R. at 1312a. The right to possess and enjoy,

without limitation, clearly embraces the right to reside and dwell upon the land and

to cultivate the same. Such use is not inconsistent with the servitude of the

Easement. When Bartschi conveyed the Baughman Farm to the Foundation, the

Foundation became the successor in title to the Baughman Farm and the holder of

these reserved rights.

When the Foundation conveyed the Mill Lot to the Township for

nominal consideration, it conveyed “all improvements located thereon, including,

but not limited to the structure known as the ‘[] Mill.’” R.R. at 58a. In return, the

Township agreed “not to construct any new structure on the [Mill Lot] except in

connection with utilities, water pipes, driveway or parking lot, fences, restroom

facilities, or any structures physically connected to [t]he Mill, such as a bathroom.”

R.R. at 59a. This did not preclude the Township “from doing any construction

related to any renovation or repair of any part of [t]he Mill.” Id. The conveyance

gave the Township the right to restore the Mill and erect any necessary

improvements limited to the Mill restoration, but prohibited the Township from

otherwise constructing any new structures.

The subdivision and conveyance of the Mill Lot did not transfer or

otherwise diminish the “rights, privileges, powers and immunities”22 otherwise held

by the Foundation with respect to the remainder of the Baughman Farm, i.e., the

Property, including the right to rebuild. Even if the Victorian House had been

situated on the Mill Lot, the Foundation did not convey the right to rebuild the

dwelling to the Township, but rather prohibited the Township from constructing any

new structures. There is simply no evidentiary or legal support for the Trust’s

22

Easement at 15; R.R. at 1312a.

40

position that the Foundation relinquished or extinguished its residual right under the

Easement. Therefore, the right to rebuild a single-family dwelling remained with

the Foundation as the owner of the remainder of the Baughman Farm – the Property.

When the Foundation conveyed the Property to the Naylors, it

transferred “all rights, privileges, powers and immunities” with it. Easement at 15;

R.R. at 1312a. The Naylors, as the current successors in interest under the Easement

are entitled to possess and enjoy the Property, which includes the right to build the

Replacement House.23 Thus, we conclude that the trial court did not err in

determining that the right to rebuild remained with owners of the Property and was

not conveyed or otherwise extinguished with the creation and conveyance of the Mill

Lot.

5. Style, Size, Configuration & Construction of Replacement House

Next, the Trust argues that the trial court erred by allowing the Naylors

to construct a Replacement House in the design, style and size of their choosing

23

Allowing the Naylors to construct a Replacement House on their Property is the most

reasonable and logical interpretation of the Easement “bearing in mind the objects manifestly to

be accomplished.” Unit Vending, 190 A.2d at 300. While the preservation of open space and

scenic views is certainly an important goal under the Easement, the retention of agriculture and

farmland is just as important. See Easement at 4, 9; R.R. at 1301a, 1306a. The Easement

recognizes that the Property “has been farmed since colonial times and still is farmed.” Easement

at 1; R.R. at 1298a. By allowing the erection of a Replacement House upon the Property, the

Easement is served by ensuring that the Property will continue into perpetuity as a family

farmstead complete with a house and agricultural buildings surrounding it. Just as buildings are

necessary to house livestock, farm equipment and feed, the replacement of a dwelling is necessary

to house the stewards of this Property, who will maintain and oversee the agricultural activities

taking place thereon. To conclude otherwise and deprive the Naylors and future stewards of the

Property the ability to live on the Property would deprive them of the very “right of exclusive

possession and enjoyment,” which the Grantor-Declarant expressly reserved “unto himself and his

successors in title to the Property.” Easement at 15; R.R. at 1312a.

41

along with all the attendant accoutrements as other single-family dwellings including

necessary infrastructure such as “septic, stormwater management,” as well as

associated residential improvements including “a detached garage, driveway, tennis

court, swimming pool, shed or equipment enclosure,” subject only to the limits of

the Township’s Zoning Ordinance and Building Code. Trial Court Order, 1/12/18,

at 1. The Trust insists that the size of the Replacement Home must be limited to the

footprint of the Victorian House. According to the Trust, the Naylors’ proposed

construction constitutes a new building supported by new structures in violation of

the Easement.

Just as there are no restrictions regarding the location of the

Replacement House under the Easement, there are no express or implied restrictions

regarding its style, size, configuration or construction. Although the Easement notes

that the dwelling house was a “classic example of Victorian architecture,” it also

recognizes that the Baughman Farm has “been farmed since colonial times.”

Easement at 1, 3; R.R. at 1298a, 1300a. The Easement describes the “historic

buildings on the [Baughman Farm]” as the “most attractive examples of 19th century

architecture of both wooden and stone construction.” Easement at 6; R.R. at 1302a.

Beyond that, the Easement does not provide any other description regarding the

configuration, such as how many stories, square footage, porch or portico, etc. It

does not describe the style of Victorian House, such as the Second Empire, Gothic

Revival, Queen Anne, Italianate, etc. There is also no indication regarding the style

or configuration of the other buildings, such as the Mill or the barn.

As the trial court found: “The Easement does not preserve historic

structures. Mr. Bartschi did not identify as a conservation value the historic aspects

42

of the buildings on the Property and the Trust has acknowledged as much.” Trial

Court Op., 1/12/18, at 15.

While the Easement clearly permits buildings necessary for agriculture,

it provides no guidance or limitations as to their style, size, configuration or

construction. The Easement could have easily noted that all agricultural buildings

must be faithful to the Victorian or Colonial period, but it did not.

Whether the building is a new agricultural building or a replacement of

an existing structure, the Easement contains no restrictions as to the style, size or

configuration or construction. Therefore, these decisions are reserved to the

Grantor-Declarant and his successors in title in the Easement.

As the trial court found, a single-family detached dwelling is permitted

to have all the attendant accessory improvements as other single-family dwellings

including necessary infrastructure such as “septic, stormwater management,” as well

as associated residential improvements including “a detached garage, driveway,

tennis court, swimming pool, shed or equipment enclosure,” subject only to the

limits of the Township’s Zoning Ordinance. Trial Court Order, 1/12/18, at 1. These

are not “new or additional buildings or structures,” but are part of the retained right

to build a single-family residence permitted under the Easement.

Upon review, the trial court did not err in determining that the

Replacement House is not required to replicate the Victorian House and that “the

choice of design or style and the dimensions of the house belongs to the Naylors.”24

24

During the proceedings, Township Supervisor testified regarding his opposition to and

fear of “a big McMansion in the middle of the field” or “some ugly, modern skyscraper.” R.R. at

374a, 427a. Such fears are largely unfounded, as even Township Supervisor admitted. See R.R.

at 374a. Although it is unclear exactly what the Naylors propose to build on the Property, they

have demonstrated a deep appreciation and respect for the historic and cultural significance of the

(Footnote continued on next page…)

43

Trial Court Op., 1/12/18, at 15. To conclude otherwise would interfere with the

retained right to possess and enjoy the Property and would improperly fashion

restrictions not otherwise expressed or intended in the Easement. See Morris v.

South Coventry Township Board of Supervisors, 836 A.2d 1015, 1018-19 (Pa.

Cmwlth. 2003) (rejecting a party’s attempt “to read into [a] [z]oning [o]rdinance a

restriction . . . that was never expressed nor intended”).25

6. Trust & Township Approval

Finally, the Trust argues that the trial court erred in determining that the

Easement does not require the Trust’s or Township’s pre-approval with regard to the

location, development plan and construction of the Replacement House. The

proposed location and proposed development run afoul of the preservation purposes

of the Easement. The Replacement House must be located without disturbance to

the “viewsheds” and the “scenic view” of the Property. Trust’s Brief at 42. Because

the Property is in the historic district, the Replacement House must be designed in

keeping with the existing historic structures. Therefore, the Trust and the Township

must be given authority to approve any development in advance to ensure that it does

not run afoul of the preservation purposes of the Easement.

Baughman Farm and surrounding area. The Naylors sensitively renovated the neighboring

eighteenth century house (Job Harvey’s house), in which they live. See R.R. at 176a, 1049a-50a,

2507a. The Naylors also restored the historic barn on the Property. R.R. at 1860a-64a.

25

We also note that such restrictions were not applied to the Mill Lot. The Agreement of

Sale of the Mill Lot permitted the Township to construct structures “in connection with utilities,

water pipes, driveway or parking lot, fences, restroom facilities or any structures physically

connected to [t]he Mill, such as a bathroom” in conjunction with the Mill’s restoration. R.R. at

60a.

44

The Trust also contends that the Naylors, by previously seeking the

Trust’s approval as to locations for the Replacement House and agreement to amend

the Easement, are estopped from arguing otherwise in this appeal. The trial court

erred by not giving their estoppel argument adequate consideration.

Contrary to the Trust’s arguments, the Easement does not give the Trust

or the Township any authority to approve or disapprove any improvements to the

Baughman Farm. Rather, the Easement bestows the Trust with the right to enforce

the Easement by virtue of the terms of the Easement itself. The Easement does not

give the Township any enforcement rights. Specifically, the Easement provides:

H. [The Trust] shall have the right to enter upon the

[Baughman Farm] set forth herein to inspect for violations

of the aforesaid provisions [of the Easement] to remove or

eliminate any such violations; and to perform such

restoration as may be deemed necessary to restore the land

after removal of said violations. [The Trust] shall have the

right to seek any legal action or remedy at law or in equity

to enforce the provisions set forth herein and granted

hereunder, including, without limitations, by the remedies

of specific performance of injunction.

I. Nothing herein shall be construed as a grant to the

general public or to a person or persons other than [the

Trust], its servants, successors or assigns or its duly

authorized agents, of the right to enter upon the Property.

....

Easement at 14-15; R.R. at 1310a-11a.

Accordingly, the Trust may enter upon the Property to inspect for

violations of the Easement’s requirements and may file suit in order to enforce the

Easement’s terms. Nowhere in the Easement’s language is the Trust vested with a

preemptive gatekeeping role, a fact that renders meritless the Trust’s argument that

its assent is necessary for a residence to be constructed on the former Baughman

45

Farm.26 Rather, its duty is to monitor for violations and then seek legal remedies

should what was once the Baughman Farm be developed in a manner the Trust

believes violates the Easement. Thus, the trial court properly concluded that the

Trust does not have power under the terms of the Easement to approve or disapprove

of the Naylors’ Replacement House plans.

As for the Trust’s estoppel argument, the doctrine of estoppel

“recognizes that an informal promise implied by one’s words, deeds, or

representations[,] which leads another to rely justifiably thereon to his own injury or

detriment, may be enforced in equity. The two essential elements of equitable

estoppel are inducement and justifiable reliance on that inducement.” Belleville v.

David Cutler Group, Inc., 118 A.3d 1184, 1199 (Pa. Cmwlth. 2015) (citations

omitted). Further,

[t]he inducement may be words or conduct and the acts

that are induced may be by commission or forbearance

provided that a change in condition results causing

disadvantage to the one induced. More important, the laws

require that . . . [t]he representation or conduct must of

itself have been sufficient to warrant the action of the party

claiming the estoppel.

Id. (quoting Zitelli v. Dermatology Education & Research Foundation, 633 A.2d

134, 139 (Pa. 1993)) (emphasis omitted). Equitable estoppel “arises when ‘a party,

by acts or representations intentionally or through culpable negligence, induces

another to believe that certain facts exist and such other relies and acts on such belief,

so that the latter will be prejudiced if the former is permitted to deny the existence

of such facts.’” Kuharchik Construction, Inc. v. Commonwealth, 236 A.3d 122, 138

26

We note that the Naylors restored the existing barn on the Property without any input or

pre-approval from the Trust or Township. See R.R. at 1207a, 1863a.

46

(Pa. Cmwlth. 2020) (quoting Department of Revenue, Bureau of Sales and Use Tax

v. King Crown Corp., 415 A.2d 927, 930 (Pa. Cmwlth. 1980)).

The fact that the Naylors previously sought the Trust’s approval of

locations and its agreement to amend the Easement does not trigger the doctrine of

equitable estoppel. The Naylors took these steps in an effort to reach an amicable

resolution with the Trust and to avoid the delay and expense of protracted litigation.

Obviously, their efforts failed. However, in no way did their actions constitute a

legally binding admission or estoppel that the Trust has pre-approval authority. The

Trust has not asserted any prejudice. As the trial court aptly opined: “Obtaining

such approval before building is merely expedient, as doing so would avert a later

claim from the Trust that the location is inconsistent with the servitude.” Trial Court

Op., 1/12/18, at 14. To conclude otherwise would deter parties from attempting to

settle their disputes without litigation. See Hydrojet Services, Inc. v. Reading Area

Water Authority, 220 A.3d 1199, 1204 (Pa. Cmwlth. 2019) (strong judicial policy

favoring the settlement of legal disputes). Thus, the trial court did not err in this

regard.

IV. Conclusion

For these reasons, we conclude that the trial court did not err in granting

partial summary judgment in favor of the Naylors and declaring that the Naylors

may construct a Replacement House on the Property at a location, style and

configuration of their choosing so long as it does not violate the servitude of

Easement, and that prior approval from the Trust or Township is not required under

the Easement.

47

Accordingly, we affirm.

__________________________________

MICHAEL H. WOJCIK, Judge

48

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and :

Suzanne Naylor, h/w :

:

v. : No. 659 C.D. 2018

:

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne :

Naylor, h/w :

:

v. : No. 707 C.D. 2018

:

Board of Supervisors of :

Charlestown Township and French :

and Pickering Creeks Conservation :

Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. :

ORDER

AND NOW, this 7th day of January, 2021, the judgment entered by the

Court of Common Pleas of Chester County in favor of husband and wife Russell

Naylor and Suzanne Naylor, on April 19, 2018, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Russell Naylor and Suzanne Naylor, :

h/w :

:

v. : No. 659 C.D. 2018

:

Board of Supervisors of Charlestown :

Township and French and Pickering :

Creeks Conservation Trust, Inc. :

:

Appeal of: Board of Supervisors of :

Charlestown Township :

Russell Naylor and Suzanne Naylor, :

h/w :

:

v. : No. 707 C.D. 2018

:

Board of Supervisors of Charlestown :

Township and French and Pickering :

Creeks Conservation Trust, Inc. :

:

Appeal of: French and Pickering :

Creeks Conservation Trust, Inc. : ARGUED: November 13, 2019

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION

BY JUDGE CEISLER FILED: January 7, 2021

While I agree with much of the majority’s reasoned opinion in this matter, I

vigorously dissent from their conclusion that the at-issue Easement does not bar

Russell and Suzanne Naylor from building their desired new residence.

When ruling upon a motion for summary judgment, the trial court must

resolve all doubts against the movant, examining the record in the light most

favorable to the non-moving party, and “may grant summary judgment only where

the right to such a judgment is clear and free from doubt.” Fine v. Checcio, 870

A.2d 850, 857 (Pa. 2005). Our review of an order granting summary judgment is

limited to determining whether the trial court’s decision constituted an abuse of

discretion or an error of law. Salerno v. LaBarr, 632 A.2d 1002, 1003 (Pa. Cmwlth.

1993).

The General Assembly has expressly declared that the purpose of the

Conservation and Preservation Easements Act (Easements Act)1 is to “recognize[]

the importance and significant public and economic benefit of conservation and

preservation easements in its ongoing efforts to protect, conserve or manage the use

of the natural, historic, agricultural, open space and scenic resources of this

Commonwealth.” Section 2 of the Easements Act, 32 P.S. § 5052. In keeping with

this statement, the General Assembly has instructed the courts of this

Commonwealth to interpret the language of conservation easements as follows:

“Any general rule of construction to the contrary notwithstanding, conservation or

preservation easements shall be liberally construed in favor of the grants contained

therein to effect the purposes of those easements and the policy and purpose of [the

Easements Act].” Section 5(c)(2) of the Easements Act, 32 P.S. § 5055(c)(2). This

direction effectively modifies the general rule

that the same rules of construction that apply to contracts

are applicable in the construction of easement grants. . . .

In ascertaining the scope of an easement, the intention of

the parties must be advanced. . . . Such intention of the

parties is determined by a fair interpretation and

construction of the grant and may be shown by the

1

Act of June 22, 2001, P.L. 390, 32 P.S. §§ 5051–5059.

EC - 2

words employed construed with reference to the

attending circumstances known to the parties at the

time the grant was made.

Zettlemoyer v. Transcon. Gas Pipeline Corp., 657 A.2d 920, 924 (Pa. 1995) (internal

citations and some punctuation omitted, emphasis added). Consequentially, the

Easements Act essentially requires courts to construe conservation easements in a

far broader manner than other types of easements, in order to maximize the reach of

their protective powers. Even so, when dealing with a conservation easement that

went into force prior to the Easements Act’s June 22, 2001 effective date, such as

the one central to this matter, the Easements Act may not be retroactively applied

thereto where doing so “contravenes the Constitution of the United States or laws of

the United States or of this Commonwealth.” Section 7(b) of the Easements Act, 32

P.S. § 5057(b). Thus, when considering such pre-Easements Act conservation

easements, the plain meaning of the words used therein remains our touchstone in

determining the purpose animating such easements.

Turning to the Easement at issue in this matter, it contains a number of

sections that pertain to the state of the Baughman Farm, the Victorian House, and

the owner’s right to construct buildings. First, there are a group of prefatory whereas

clauses, several of which are pertinent to the matter before us:

WHEREAS, the Pickering Valley is still rural and

relatively free from over-development and commercial or

industrial intrusion and is of high scenic quality;

WHEREAS, the [Baughman Farm] is partly in open tilled

fields and pasture, partly wooded, partly grown up with

trees and bushes which create fine wildlife and bird cover,

with topography including some floodplain and some high

water table or wet areas; and

....

WHEREAS, the [Baughman Farm] lies in the area

recommended for preservation in the Report [titled

“Pickering Creek Valley: A Preservation Opportunity”] as

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a Critical Environmental Preservation District, high in

historic and cultural values, and also designated in the

Report as possessing high scenic quality, and within a

Scenic Corridor as designated by the Report; and

WHEREAS, the [Baughman Farm] is in Charlestown

Township, which is noted for its scenic beauty and historic

values; and

WHEREAS, all the buildings on the [Baughman Farm]

are on the National Register of Historic Places and are

part of the Charlestown National Historic District; and

WHEREAS, one of each buildings is an historic water[-

] powered mill, first used as a fulling mill and later a

grist and cider mill and the dwelling house on the

[Baughman Farm] is a classic example of Victorian

architecture; and

....

WHEREAS, Grantor-Declarant [Mr. Bartschi] is desirous

of preserving the agricultural, historic, scenic and

relatively natural state of the [Baughman Farm] and

further desires to conserve and protect the [Baughman

Farm] and surrounding lands from soil erosion, water

pollution, natural disruptions, visual intrusions and other

occurrences which might interfere with the beauty and

unique character of the [Baughman Farm] as it exists in its

relatively natural, scenic, historic and agricultural state;

and specifically to protect it and its environs and the lands

and streams adjacent to it in the following

[“]particulars[”.]

Open Space Easement in Gross in Perpetuity and Declaration of Restrictive

Covenants (Easement) at 2-4 (emphasis added); Reproduced Record (R.R.) at 30a-

32a.

Of relevance here are the following “particulars”:

II. Scenic Enjoyment of the General Public

The [Baughman Farm] is in full view from several

well[-]traveled public roads one of which passes

through it and bisects it and the others adjoin it or

pass near it. The views from these public roads and

from the lands open to the public which adjoin or lie

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near the [Baughman Farm] give fine panoramas

across the gently sloping fields, meadows and

woodlands of the [Baughman Farm], across the

Pickering Creek and looking upward across the

lowlands and rising slopes to wooded ridges on the

north, east and south of the [Baughman Farm]

which are strong features of the local landscape.

From all directions, the prospect is scenic and

beautiful. In addition, the historic buildings on the

[Baughman Farm] are most attractive examples of

19th century architecture of both wooden and stone

construction.

III. Protection of the Natural Habitat or Ecosystem of

Wildlife, Plants and Fish

(a) Wooded Area - Conservation or the wooded area

in its natural state including both trees and the

ecologically important varied undergrowth and

plant life; as well as

(b) Wildlife - Protection of the wildlife of the area

including deer, raccoon, foxes, other small animals,

and bird life, both migratory and local; as well as

(c) Fish Life - Protection of fish in the Pickering

[Creek] together with such aquatic or semi-aquatic

mammals as muskrat and mink, and the many

varieties of insect life which are indicative of the

liminalogical health of the streams and which

support the fish.

(d) The fields and pastures also provide feed for

animals and birds and a relatively natural habitat.

IV. Public Recreation and Education

Pickering Creek affords recreational fishing to the

general public. Members of the public driving on

the public roads can get a charming view of a 19th

century farm setting.

Easement at 5-7; R.R. at 33a-35a.

Later on in the Easement, Mr. Bartschi and French and Pickering Creeks

Conservation Trust, Inc., stated that it is focused upon

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preserving the beauty and unique character of the

[Baughman Farm], and its environs as they exist in

their historic, scenic, agricultural and relatively

natural state, subject to the qualifications hereinafter set

forth, and . . . conserving and protecting the [Baughman

Farm] and surrounding lands from any natural disruptions

or other occurrences which might interfere with the same,

including, without limitation, soil erosion, water pollution

and visual disruptions or intrusions in or upon the general

scene as viewed from the roads which pass nearby or

run through the [Baughman Farm], or from

surrounding public and protected areas.

Easement at 10 (emphasis added); R.R. at 38a. To that end, Mr. Bartschi “agree[d]

that the Property shall remain in its present relatively natural and scenic state subject

to the qualifications hereinafter mentioned, and shall not be the subject of residential

(except as hereinafter provided), industrial or commercial development (except

farming).” Easement at 10 (emphasis added); R.R. at 38a. These “qualifications”

included, in relevant part:

A. No industrial or commercial activities, with the

exception of farming, or the operation of the aforesaid

mill, shall be conducted or permitted on the [Baughman

Farm];

B. No new or additional buildings or structures (as

hereinafter defined) shall be built and maintained on

the [Baughman Farm].

C. For the purposes of this Grant and Declaration, the

following definitions shall apply:

(1) “Farming” shall include the commercial

production of any and all plant and animal products,

including Christmas trees, and the breeding, raising,

using, maintaining or sale of any livestock including

horses, mules and donkeys.

(2) “Building” and “structure” shall include the

ordinary usage of the words[,] as well as asphalt

or concrete roads, driveways and parking lots,

mobile homes, (meaning transportable dwellings

intended for permanent or semi-permanent

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occupancy or office or place of assembly, but not

including recreational trailers), pipelines, drainage

swales, poles, or any other facilities normally used

in supplying utilities or removing effluent or surface

water; provided, however, that the restrictions in

this [Easement] as to buildings and structures

shall not apply to structures or facilities for the

use or benefit of the general public or a portion

thereof other than the Grantor-Declarant [Mr.

Bartschi], Trust, and their or its respective heirs,

devisees, executors, administrators, successors or

assigns or any person holding by, through or

under them or any of them, which structures or

facilities are acquired or constructed by the United

States, the Commonwealth of Pennsylvania or any

political subdivision or municipality thereof, or any

other public agency having or performing

governmental functions, or by any private or public

corporation having or using the power of eminent

domain whether such acquisition or construction

shall be made under such power or by private treaty,

other contract, or otherwise.

D. No signs, billboards or outdoor advertising structure

shall be displayed on the [Baughman Farm] other than one

sign not exceeding four feet by six feet for each of the

following purposes: (i) to state the name of the [Baughman

Farm] and the name and address of the occupant, (ii) to

advertise an activity, permitted under the provisions of this

[Easement], and (iii) to advertise the property for sale or

rental. Provided, however, that . . . sub-paragraph F shall

not limit the right of [the Trust] to display on the

[Baughman Farm], at its discretion, a small marker or sign

evidencing its interest under this [Easement], provided the

same is approved by Grantor-Declarant in writing.

....

G. The parties hereto further covenant and agree that the

following uses and practices of and on the [Baughman

Farm], though not an exhaustive recital of consistent uses

and practices, are consistent with their intentions and in

consonance with this [Easement]:

....

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(d) Subject to all the limitations stated elsewhere

in this [Easement,] to maintain and repair

fences, buildings and other improvements on the

[Baughman Farm] and to place upon the

[Baughman Farm] those additional fences,

buildings and other improvements as may be

necessary for agricultural purposes, all in

consonance with Paragraphs C and D above[.]

Easement at 11-14 (emphasis added); R.R. at 39a-42a.

Several things are shown through this language. First, Mr. Bartschi wished to

preserve the Baughman Farm as it existed at the time he signed the Easement with

the Trust. Second, this desire encompasses the historical and scenic aspects of the

Baughman Farm, including the Victorian House. Third, while the Easement does not

allow new residences to be erected, it does permit maintenance and repair to be done

on the Baughman Farm’s non-agricultural buildings. Fourth, the Easement’s

development restrictions not only bound Mr. Bartschi, but are binding upon his

successors-in-interest as well.

Therefore, given the unambiguous language of the Easement, it is evident the

Court of Common Pleas of Chester County (Trial Court) erred in granting summary

judgment to the Naylors, an error that the majority now compounds. Both the

majority and the Trial Court have improperly ignored the Easement’s language

expressly barring the erection of new residential structures on the former Baughman

Farm, a prohibition which clearly covers the Naylors’ desired future dwelling. The

majority has given its blessing to the Trial Court’s erroneous interpretation of the

Easement, thereby arming the Naylors with incredibly broad authority to erect a

residence of any size and at any location on their Property, complete with any

accoutrements they desire, “such as a detached garage, driveway, tennis court,

swimming pool, shed and equipment enclosure, as well as septic, stormwater

management, etc.” Trial Ct. Decision, 1/12/18, at 16-17. The Naylors’ ambitions,

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thus unconstrained in spite of the Easement, will now be checked only by the

strictures of the Township’s various ordinances. Such unfettered latitude flies in the

face of Mr. Bartschi’s clear intent to preserve, in perpetuity, the Baughman Farm in

substantially the same state as it existed at the time of the Easement’s signing, as

well as his clear intent to radically limit any attempts at further residential

development thereon.

The majority focuses on the lack of explicit language meticulously placing

limitations on the size, location, or appearance of a replacement to the Victorian

House. Naylor v. Bd. Of Supervisors of Charlestown Twp., (Pa. Cmwlth. Nos. 659

C.D. 2018 and 707 C.D. 2018, filed January 7, 2021) slip op. at 37-38, 42-43. This,

however, misses the forest for the trees, given that the Naylors’ proposed home

would very obviously constitute new residential development. Furthermore, there is

no doubt that the Easement would bar the Naylors from building their desired house

if the Victorian House had been allowed to deteriorate to a dilapidated shell; how

then is it logical to find that the Naylors effectively have carte blanche to build a

new house of any size at a different location because the Victorian House instead

went up in flames and had its remains then bulldozed?

Contrary to the majority’s and the Trial Court’s conclusion, the Easement only

permits a residence to be located upon the footprint of the original Victorian House,

due to the combined effect of the Easement’s prohibition against the construction of

new residences and its broad language regarding maintenance and repair; it does not

create a free-floating right to build a larger home elsewhere on the former Baughman

Farm. In other words, the Easement’s overarching language is that the Victorian

House may be rebuilt at its original location, but that is the extent of the leeway

given by the Easement regarding residential use of the land which once constituted

the Baughman Farm.

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Furthermore, there is conflicting evidence in the record as to where exactly

the Victorian House was located on the former Baughman Farm. At this point, it is

not clear whether the Victorian House was entirely on the Naylor Property, entirely

on the Mill Lot, or straddled the two. See, e.g., Notes of Testimony, 5/23/17, at 74-

75 (trial testimony of Pamela Brown); R.R. at 1298a-1336a (the Easement, pictures

and maps of the Baughman Farm, agreements of sale for both the Mill Lot and

Naylor Property, and related communications); Russell Naylor Dep. at 90-96; R.R.

at 805a-11a. A remand is thus in order, so that the Trial Court can determine the

Victorian House’s exact location and, by extension, whether the right to rebuild it

was transferred to the Naylors when they purchased that part of the Baughman Farm

from the Bartschi Foundation. The majority disregards this critical point as well.

Consequently, I concur in part with and dissent in part from the majority’s

decision in this matter.

ELLEN CEISLER, Judge

Judge Cohn Jubelirer joins in this Concurring and Dissenting Opinion.

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