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Newtown Square East, L.P v. Township of Newtown

December 29, 2011

NEWTOWN SQUARE EAST, L.P., APPELLANT
v.
TOWNSHIP OF NEWTOWN



The opinion of the court was delivered by: P. Kevin Brobson, Judge

Argued: October 18, 2011

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge

OPINION BY JUDGE BROBSON

Appellant Newtown Square East, L.P. (NSE), appeals from two orders of the Court of Common Pleas of Delaware County (trial court). One of the orders from which NSE appeals is the trial court‟s June 24, 2010 order, which denied NSE‟s land use appeal and affirmed the order of the Newtown Township Board of Supervisors (Board), approving a planned residential development (PRD) Tentative Plan Application (Tentative Plan) submitted to the Board by intervenor BPG Real Estate Investors-Straw Party I, L.P. (BPG).*fn1 The other order from which NSE appeals is the trial court‟s June 22, 2010 order, denying NSE‟s motion to consolidate this appeal with another appeal that NSE filed involving a decision of the Newtown Township Zoning Hearing Board (ZHB) in which NSE asserted that the Township‟s 2009 Planned Residential Development Ordinance (PRD Ordinance) is not valid. For the reasons that follow, we affirm the trial court‟s orders.

I. BACKGROUND

NSE does not challenge any specific factual findings of the Board. Consequently, we will summarize below the key procedural and substantive facts based upon the Board‟s findings. BPG owns a tract of land approximately 218.664 acres in size. Under the PRD Ordinance, the tract is located within the PRD Overlay District. The tract already has some improvements, including: (1) nearly one million square feet of office space and industrial buildings; (2) six historic cottages that are used for office and accessory purposes; (3) a conference center; (4) a fitness center; and (5) and three-story medical office building.

On January 22, 2009, BPG submitted to the Board a Tentative Plan, proposing to develop another area of the tract as a mixed-use development. The Tentative Plan included plan documents and information required by the PRD Ordinance.*fn2 The Township‟s Engineering firm, Pennoni Associates, Inc. (Pennoni), reviewed the Tentative Plan and issued two comment letters to BPG in May and June 2009. On May 14 and June 11, 2009, the Township‟s Planning Commission reviewed the Tentative Plan and approved it subject to BPG‟s compliance with the comments Pennoni made regarding the Tentative Plan, the adoption of the 2009 PRD Ordinance, compliance with traffic improvements reflected in the "Settlement Agreement," delineation of public and private open space, and revision of oversized parking space locations.

The Board held hearings on the Tentative Plan on September 14 and October 7, 2009, during which BPG submitted various exhibits setting forth required details of the proposed mixed-use development. The proposed development included the following: (1) an area identified as Sector 1 containing "a maximum of 464,560 square feet of [c]ommercial/retail/restaurant space, 136,415 square feet of office space, 310 residential units with no more than 480,000 square feet of floor area, a 120,000 square foot hotel, and an additional 100,000 square feet of flexible space that may be devoted to office and/or hotel use in the mixed use area of the Tract . . . ;" (2) an area identified as Sector 2 containing "a total of 400,000 square feet of office space in two buildings (including the existing medical office building) on the Front Lawn portion of the Tract;" and (3) an area identified as Section 3 containing "98 residential units within the area adjacent to Route 252 and Goshen Road." (Board Decision, Finding of Fact (F.F.) No. 16.)

The Board, after consideration of the evidence, determined as follows:

As set forth in the evidence . . . the Proposed Development is consistent with both the objectives of the PRD Ordinance and the Township‟s Comprehensive Plan and reflects the Township‟s vision for growth in the Newtown Square crossroads area contained therein. Specifically:

A. The Proposed Development provides opportunities for new residential development for the general populace in the Newtown Square crossroads area to meet the growing demand for a variety of residential dwellings;

B. The Proposed Development provides integrated retail, office, community, open space and residential uses in the Newtown Square crossroads area;

C. The Proposed Development includes mixed-use, multi-story buildings, with retail shops at ground level, and offices and apartments above;

D. The Proposed Development includes residential uses within walking distance of community uses and commercial services;

E. The Proposed Development includes pedestrian-oriented buildings, directly accessible from small streets or from a walkable system;

F. The Proposed Development includes pedestrian-oriented lighting, benches and landscaping;

G. The Proposed Development includes off-street parking lots and ...


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