Newtown Square E., L.P. v. Twp. of Newtown

• Decision Date: 24 September 2014
• Docket Number: Nos. 14 MAP 2013,s. 14 MAP 2013
• Citation: 101 A.3d 37,627 Pa. 398
• Court: Pennsylvania Supreme Court
• Parties: NEWTOWN SQUARE EAST, L.P., Appellant v. TOWNSHIP OF NEWTOWN, Appellee BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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 National Realty Corporation, Appellant v. Zoning Hearing Board of Newtown Township, Delaware County, Pennsylvania, Appellee NEWTOWN TOWNSHIP, Intervenor BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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 National Realty Corporation, Appellant v. Zoning Hearing Board of Newtown Township, Delaware County, Pennsylvania, Appellee Newtown Township, Intervenor BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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.

627 Pa. 398

101 A.3d 37

NEWTOWN SQUARE EAST, L.P., Appellant

v.TOWNSHIP OF NEWTOWN, Appellee

BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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 National Realty Corporation, Appellant

v.Zoning Hearing Board of Newtown Township, Delaware County, Pennsylvania, Appellee

NEWTOWN TOWNSHIP, Intervenor

BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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 National Realty Corporation, Appellant

v.Zoning Hearing Board of Newtown Township, Delaware County, Pennsylvania, Appellee

Newtown Township, Intervenor

BPG Real Estate Investors–Straw Party–1, L.P., BPG Real Estate Investors–Straw Party–II, 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.

Nos. 14 MAP 2013

Supreme Court of Pennsylvania.

Argued Sept. 10, 2013.

Decided Sept. 24, 2014.

Louis M. Kodumal, Esq., Vincent B. Mancini, Esq., Law Offices of Vincent B. Mancini & Associates, Media, for Zoning Hearing Board of Newtown Township.

Arlin M. Adams, Esq., Monica Nicole Clarke Platt, Esq., Nancy L. Winkelman, Esq., Schnader Harrison Segal & Lewis, L.L.P., Philadelphia, Joseph A. Damico, Jr., Esq., Charles Graham Miller, Esq., John W. Nilon Jr., Esq., Petrikin, Wellman, Damico, Brown & Pestosa, P.C., Media, for Newtown Square East, L.P.

Richard C. Sokorai, Esq., High Swartz LLP, Norristown, for Newtown Township.

Ronald M. Agulnick, Esq., for Homebuilders Association of Chester and Delaware Counties.

David James Bird, Esq., Reed Smith, LLP, Pittsburgh, for O'Neill Properties Group, L.P., the Brickstone Co., Korman Co., and Phil. Real Estate Council.

Mark A. Sereni, Esq., DiOrio & Sereni, L.L.P., Media, for Marple Newtown School District.

Robert L. Byer, Esq., Pittsburgh, Robert McCarthy Palumbos, Esq., Duane Morris LLP, Philadelphia, Marc B. Kaplin, Esq., Kaplin Stewart Meloff Reiter & Stein, P.C., Blue Bell, Andrew J. Reilly, Esq., Swartz Campbell, L.L.C., Media, for BPG Real Estate Investors and BPG.

Opinion

Justice McCAFFERY.

On July 13, 2009, pursuant to enabling legislation in Article VII of the Municipalities Planning Code¹ (“MPC”), the Newtown Township Board of Supervisors (“Township Board”) enacted a Planned Residential Development Ordinance (“PRD Ordinance”).² This appeal involves challenges to the validity of that ordinance and to the approval of a Tentative PRD Plan pursuant to it.

In permitting the creation of PRD's, the General Assembly sought “to encourage innovations in residential and nonresidential development ... so that the growing demand for housing and other development may be met by greater variety in type, design and layout of dwellings and other buildings and structures and by the conservation and more efficient use of open space ancillary to said dwellings and uses.” 53 P.S. § 10701. As the Commonwealth Court has explained,

PRDs offer an alternative to traditional, cookie-cutter zoning. A PRD is “a larger, integrated planned residential development which does not meet standards of the usual zoning districts” and offers municipalities flexibility.... “The idea behind PRD zoning is to create a method of approving large developments which overrides traditional zoning controls and permits the introduction of flexibility into the design of larger developments.”

Kang v. Supervisors of Township of Spring, 776 A.2d 324, 328 (Pa.Cmwlth.2001) (quoting 2 Robert S. Ryan, Pennsylvania Zoning Law and Practice, § 12.1.1 and § 12.1.8 (1981)).

On January 22, 2009,³ Intervenors BPG Real Estate Investors (“BPG”) submitted an application under the anticipated PRD Ordinance for approval of a Tentative PRD Plan, proposing multi-use development of an approximately 218–acre tract of land that it owned. The Township Board orally approved BPG's Tentative PRD Plan on October 13, 2009, and issued a written decision granting approval on December 4, 2009.

In August 2009 and November 2009, respectively, Newtown Square East, L.P. (“NSE”), which owned a two-acre tract of land adjacent to BPG's tract, filed a challenge to the validity of the PRD Ordinance with the Newtown Township Zoning Hearing Board (“Zoning Board”), and filed an appeal of the Township Board's approval of BPG's Tentative PRD Plan with the court of common pleas.

With regard to its validity challenge before the Zoning Board, NSE argued, inter alia, that the PRD Ordinance violated Article VII of the MPC by, allegedly, failing to require that a tentative plan identify the uses of buildings and other structures, and permitting the location of buildings to be subject to free modification between the time of tentative plan approval and final plan approval. Following several hearings, the Zoning Board upheld the validity of the PRD Ordinance, finding that its minor textual variations from the relevant provisions of the MPC, Article VII, did not create an inconsistency or conflict with the enabling legislation. See NSE's PRD Validity Challenge before the Zoning Hearing Board of Newtown Township, Findings of Fact, Discussion, Conclusions of Law and Decision/Order, dated 5/5/10 (“Zoning Board Decision”), at 24–35. NSE appealed the Zoning Board's decision to the court of common pleas, which affirmed without taking any additional evidence.

Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township, No. 10–4799, Opinion (Ct.Com.Pleas, filed 10/28/ 10). The court held that the PRD Ordinance did not exceed the scope of authority granted by Article VII, had the same requirements as Article VII, and was not rendered invalid by its minor textual differences from Article VII. Id. at 5.

The court of common pleas also affirmed the Township Board's approval of the Tentative PRD Plan. Newtown Square East, L.P. v. Township of Newtown, No. 09–14594, Opinion (Ct.Com.Pleas, filed 4/6/11). Specifically, following a hearing at which evidence was taken, the court found that the Tentative PRD Plan “met the requirements of the PRD Ordinance and that the Board's approval of the [Plan] was supported by substantial credible evidence.” Id. at 6. NSE appealed both decisions to the Commonwealth Court.

In separate opinions, the Commonwealth Court upheld the validity of the PRD Ordinance and the Township Board's approval of the Tentative PRD Plan.^{4 , 5} See , respectively, Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township, 38 A.3d 1018, 1023–29 (Pa.Cmwlth.2011) ; Newtown Square East, L.P. v. Township of Newtown, 38 A.3d 1008, 1013–17 (Pa.Cmwlth.2011). NSE then sought allowance of appeal to this Court.

We granted NSE's petitions for allowance of appeal, limited to the following three issues:

1. Did the Commonwealth Court err in interpreting the MPC as authorizing a developer's Tentative Plan to designate the use of buildings by generic designation only as “residential” or “nonresidential” so as to effectively negate the MPC's due process safeguards requiring notice and a public hearing and thereby deny due process to the public and neighboring property owners?

2. Did the Commonwealth Court err in adopting a novel interpretation of MPC Section 707(4)(iv) that has no basis in the law, that conflicts with the meaning of the term “use” throughout the MPC, and that conflicts with this Court's decision in Eves v. Zoning Board of Adjustment 164 A.2d 7 (Pa.1960) ?

3. Did the Commonwealth Court err in holding that the Tentative Plan complies with the PRD Ordinance and the MPC when the Tentative Plan fails to reveal the use of buildings, as required by a valid PRD Ordinance and by the MPC?

Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township, 619 Pa. 391, 64 A.3d 624, 625 (2013) ; Newtown Square East, L.P. v. Township of Newtown, 619 Pa. 393, 64 A.3d 625 (2013).

A zoning ordinance is presumed valid, and a challenger must carry the heavy burden to prove otherwise. Township of Exeter v. Zoning Hearing Board of Exeter Township, 599 Pa. 568, 962 A.2d 653, 660 (2009) ; Upper Salford Township v. Collins, 542 Pa. 608, 669 A.2d 335, 336 (1995). To the extent that NSE's issues before this Court rest on interpretation of the MPC, they present a question of law for which our standard of review is de novo and our scope is plenary. Newman Development Group of Pottstown, LLC v. Genuardi's Family Markets, Inc., 617 Pa. 265, 52 A.3d 1233, 1239 (2012) ; Dechert LLP v. Commonwealth of Pennsylvania, 606 Pa. 334, 998 A.2d 575, 579 (2010). The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General...