[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
NEWTOWN SQUARE EAST, L.P., : No. 14 MAP 2013
:
Appellant : Appeal from the Order of the
: Commonwealth Court dated December 29,
: 2011 at No. 1474 CD 2010 which Affirmed
v. : the Order of the Delaware County Court of
: Common Pleas, Civil Division, dated June
: 24, 2010 at No. 09-14594.
TOWNSHIP OF NEWTOWN, :
: ARGUED: September 10, 2013
Appellee :
:
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-1, L.P., :
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-II, L.P., :
CAMPUS INVESTORS OFFICE B, L.P., :
CAMPUS INVESTORS 25, L.P., CAMPUS :
INVESTORS 1 BUILDING, L.P., CAMPUS :
INVESTORS H BUILDING, L.P., CAMPUS :
INVESTORS D BUILDING, L.P., CAMPUS :
INVESTORS COTTAGES, L.P., CAMPUS :
INVESTORS OFFICE 2B, L.P., ELLIS :
PRESERVE OWNERS ASSOC. INC., :
KELLY PRESERVE OWNERS ASSOC. :
INC., COTTAGES AT ELLIS OWNERS :
ASSOC. INC., GENBER/MANAGEMENT :
CAMPUS LLC, BERWIND PROPERTY :
GROUP LTD., EXECUTIVE BENEFIT :
PARTNERSHIP CAMPUS L.P., :
MANAGEMENT :
PARTNERSHIP-BENEFIT AND ELLIS :
ACQUISITION L.P., :
:
Intervenors :
:
NEWTOWN SQUARE EAST, L.P., C/O : No. 15 MAP 2013
NATIONAL REALTY CORPORATION, :
: Appeal from the Order of the
Appellant : Commonwealth Court dated December 29,
: 2011 at No. 2390 CD 2010
: Affirming/Reversing the Order of the
v. : Delaware County Court of Common Pleas,
: Civil Division, dated October 28, 2010 at
: No. 10-4799.
ZONING HEARING BOARD OF :
NEWTOWN TOWNSHIP, DELAWARE : ARGUED: September 10, 2013
COUNTY, PENNSYLVANIA, :
:
Appellee :
:
NEWTOWN TOWNSHIP, :
:
Intervenor :
:
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-1, L.P., :
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-II, L.P., :
CAMPUS INVESTORS OFFICE B, L.P., :
CAMPUS INVESTORS 25, L.P., CAMPUS :
INVESTORS 1 BUILDING, L.P., CAMPUS :
INVESTORS H BUILDING, L.P., CAMPUS :
INVESTORS D BUILDING, L.P., CAMPUS :
INVESTORS COTTAGES, L.P., CAMPUS :
INVESTORS OFFICE 2B, L.P., ELLIS :
PRESERVE OWNERS ASSOC. INC., :
KELLY PRESERVE OWNERS ASSOC. :
INC., COTTAGES AT ELLIS OWNERS :
ASSOC. INC., GENBER/MANAGEMENT :
CAMPUS LLC, BERWIND PROPERTY :
GROUP LTD., EXECUTIVE BENEFIT :
PARTNERSHIP CAMPUS L.P., :
MANAGEMENT :
PARTNERSHIP-BENEFIT AND ELLIS :
ACQUISITION L.P., :
:
Intervenors :
:
NEWTOWN SQUARE EAST, L.P., C/O : No. 16 MAP 2013
NATIONAL REALTY CORPORATION, :
: Appeal from the Order of the
Appellant : Commonwealth Court dated December 29,
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 2
: 2011 at No. 137 CD 2011
: Affirming/Reversing the Order of the
v. : Delaware County Court of Common Pleas,
: Civil Division, dated January 25, 2011 at
: No. 10-4799.
ZONING HEARING BOARD OF :
NEWTOWN TOWNSHIP, DELAWARE : ARGUED: September 10, 2013
COUNTY, PENNSYLVANIA, :
:
Appellee :
:
NEWTOWN TOWNSHIP, :
:
Intervenor :
:
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-1, L.P., :
BPG REAL ESTATE :
INVESTORS-STRAW PARTY-II, L.P., :
CAMPUS INVESTORS OFFICE B, L.P., :
CAMPUS INVESTORS 25, L.P., CAMPUS :
INVESTORS 1 BUILDING, L.P., CAMPUS :
INVESTORS H BUILDING, L.P., CAMPUS :
INVESTORS D BUILDING, L.P., CAMPUS :
INVESTORS COTTAGES, L.P., CAMPUS :
INVESTORS OFFICE 2B, L.P., ELLIS :
PRESERVE OWNERS ASSOC. INC., :
KELLY PRESERVE OWNERS ASSOC. :
INC., COTTAGES AT ELLIS OWNERS :
ASSOC. INC., GENBER/MANAGEMENT :
CAMPUS LLC, BERWIND PROPERTY :
GROUP LTD., EXECUTIVE BENEFIT :
PARTNERSHIP CAMPUS L.P., :
MANAGEMENT :
PARTNERSHIP-BENEFIT AND ELLIS :
ACQUISITION L.P., :
:
Intervenors :
:
DISSENTING OPINION
MR. JUSTICE EAKIN DECIDED: September 24, 2014
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 3
I agree with the majority that the Planned Residential Development (PRD)
Ordinance does not offend the provisions in Article VII of the Municipalities Planning
Code (MPC).1 However, I would reverse, as I find BPG Real Estate Investors’ (BPG)
tentative plan was insufficiently specific and contained improper use designations,
thereby precluding informed public comment and appropriate governmental
consideration; as such, it did not comply with the ordinance. Thus, I respectfully dissent.
As the majority notes, PRDs are not based on traditional notions of zoning. They
allow different uses to be adjacent to one another, forming little multi-use complexes and
communities rather than restricting larger areas to single uses. Obviously, flexibility is
required to accomplish this, but flexibility of the whole does not excuse the developer from
identifying what those different uses are and where they are to be placed. That is,
allowing multiple uses on a single development plan is not only permitted but is the
underlying reason for the PRD legislation — however, public comment and governmental
consideration are required by that legislation, and cannot happen in any meaningful way
when the plan merely describes broad generic categories not in conformity with the
enumerated permissible uses of the ordinance or the MPC.
The MPC mandates an ordinance “set forth the uses permitted in a [PRD.]” Id., §
10705(b). This ordinance set forth 21 specific uses. See PRD Ordinance, Article III, §
302(A). Per § 707(4) of the MPC, a tentative plan must include “the density of land use
to be allocated to parts of the site to be developed; [] the location and size of the common
open space N; [and] the use and the approximate height, bulk and location of buildings
and other structures[.]” 53 P.S. § 10707(4)(ii)-(iv). Similar to § 707(4), Article IV of the
PRD Ordinance requires a tentative plan to include “[a] designation and location of the
intended uses of all portions of the proposed development N [and] the density of land use
1 53 P.S. §§ 10701-10713.
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 4
to be allocated to parts of the site to be developed.” See PRD Ordinance, Article IV, §
402.4(H)(1), (4).
If a tentative plan identifies “the use and the approximate height, bulk and location”
of a segment as a restaurant, it need not name the restaurant to comply with 53 P.S. §
10707(4)(iv). However, merely calling it “commercial” space or “non-residential” space
does nothing to identify the use thereof, and does not allow the public to make any
meaningful comment; it does not allow the governing body to understand what it is really
approving. The differences between restaurants of identifiable height, bulk, and location
may be inconsequential, but there are considerable differences between all the uses that
qualify as “non-residential” — a restaurant is one thing, but a Walmart is quite another. A
hotel is “commercial,” but brings with it a different dynamic than a barber shop. There is
a measured degree of specificity that must be provided if the review requirements of the
MPC and the ordinance are to have meaning. These are uses “as of right,” but that does
not mean they may be located in a slap-dash fashion and be immune from identity such
as allows comment or considered approval.
The Board reviewed BPG’s proposal for development of Sector 1 of the PRD tract,
approving, “with the maximum density and intensity of use[,]” 464,560 square feet of
“[c]ommercial/retail/restaurant” space and “[u]p to an additional 100,000 square feet of
flexible space that may be devoted to office and/or hotel use.” Board of Supervisors
Decision, 12/3/09, at 11. Although the land subject to a PRD plan may indisputably
contain mixed uses, there is no authority allowing the use designations themselves within
the plan to be comingled. Neither Article VII of the MPC nor the PRD Ordinance provide
for multi-use designations in tentative plans.2 See 53 P.S. § 10707(4); see also PRD
2 Although a mixed-use building is allowed under the PRD Ordinance and Article VII of
the MPC, BPG’s multi-use designations pertained to the entire sector itself; it did not
(continuedN)
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 5
Ordinance, Article III, § 302(A); id., Article IV, § 402.4. Such combined designations also
lack the requisite submission information for a tentative plan, the purpose of which is to
provide such information that is reasonably necessary to disclose the tentative use to the
governing body. See 53 P.S. § 10707(4); see also PRD Ordinance, Article IV, § 402.4
(“The intent of the [t]entative [p]lan submission requirements is to provide the N planning
information specifically required by Section 707(4) of [the MPC.]”).
Flexibility does not equate to “obfuscation by generality.” These ambiguous
designations serve as little more than conjecture and contain inadequate information —
the tentative uses are practically undefined, and the possibilities encompassed thereby
are nearly endless. For example, “commercial/retail/restaurant” could entail solely retail,
solely commercial, or solely restaurant space, or any ratio of the three. It could be retail
(Macy’s or K-Mart), restaurant (Sheetz or Le Bec Fin), offices (doctors or bail bondsmen),
or commercial (a bowling alley or Whole Foods). It could be any mix of these. It is not
obscuring the peculiar tenant within “uses as of right” that is objectionable; it is the
befogging of the ability to identify the actual use that is created by the vague generality of
the plan’s descriptions.
“Commercial,” which is not a use enumerated in the PRD Ordinance, does not
constitute an identifying term for it can encompass approximately 13 other uses apart
from retail or restaurant use. See PRD Ordinance, Article III, § 302(A). The multi-use
designation of “commercial/retail/restaurant” could include a tract of either 464,560
square feet of fast food, retail, business offices, anything else considered “commercial,”
or any combination thereof. Nearly half a million square feet is a lot of space to be
undefined. Further, “[u]p to an additional 100,000 square feet of flexible space that may
(Ncontinued)
submit a designation for each particular mixed-use building apportioning each use to its
corresponding square footage.
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 6
be devoted to office and/or hotel use[,]” Board of Supervisors Decision, 12/3/09, at 11, is
even more vague. Not only could it allow solely hotel or office space, or any combination
of the two, but it also could encompass “flexible space,” which “may” be used for hotel or
offices — not “shall” be so used, but “may” be. This designation — maybe it will be,
maybe it won’t — allows 100,000 square feet of malleable space for whatever use BPG
pleases.
The aforementioned designations should have been separated into single uses
containing the tentative square footage allocated to each particular use. This would
have sufficiently complied with the submission requirements under § 707(4) of the MPC
and Article IV of the PRD Ordinance by providing “such information in the [tentative-plan]
application as is reasonably necessary to disclose to the governing body N the density of
land use to be allocated to parts of the site to be developed N [and] the use and the
approximate height, bulk and location of buildings and other structures[.]” 53 P.S. §
10707(4)(ii), (iv).
The General Assembly did not intend to allow such blurred designations of use; if it
did, it would have explicitly permitted such combination. Instead, the General Assembly
specifically utilized the singular term “use.” See, e.g., id., § 10707(4)(iv). Moreover, the
General Assembly’s clear intent is evident upon review of the final-plan procedure under
the MPC and the PRD Ordinance. When examining the subsections controlling an
application for final approval, it appears the governing body has the duty to grant final
approval as long as the plan conforms to the ordinance and does not contain “variations”
from the approved tentative plan:
(b) In the event the application for final approval has been filed, together
with all drawings, specifications and other documents in support thereof,
and as required by the ordinance and the official written communication of
tentative approval, the municipality shall N grant such development plan
final approval N.
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 7
(c) In the event the [final] plan as submitted contains variations from the []
plan given tentative approval, the approving body may refuse to grant final
approval N.
Id., § 10711(b)-(c) (emphasis added); see also PRD Ordinance, Article IV, §§
408.2-408.3.
After reviewing these provisions, the danger of allowing multi-use designations
becomes apparent; approving their use eviscerates final-plan review and essentially
gives the developer unfettered discretion. A tentative approval of
“commercial/retail/restaurant” affords a developer unreviewable options in creating final
plans, yet the plan would have to be approved because it would be in compliance with the
tentatively approved plan, as the term is so broad that any variations or change could fit
under its umbrella. Permitting broad multi-use designations promotes vagueness in the
tentative-plan stage and results in less recognition of the final product, less vetting upon
final review, and uncertain information being disclosed to affected parties and the
governing body regarding what the developer actually proposes. Such wide-ranging
designations appear contrary to the plain meaning of the PRD Ordinance and Article VII
of the MPC regarding the purpose of final review and the requirement that tentative plans
include all reasonably necessary information about the proposed PRD.
For these reasons, I respectfully dissent.
Mr. Justice Saylor and Madame Justice Todd join this dissenting opinion.
[J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 8