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Newtown Square East, L.P v. National Realty Corporation

December 29, 2011

NEWTOWN SQUARE EAST, L.P., APPELLANT
v.
NATIONAL REALTY CORPORATION, ZONING HEARING BOARD OF NEWTOWN TOWNSHIP, NEWTOWN TWP., BPG REAL ESTATE INVESTORS STRAW PRT, CAMPUS INVESTORS OFFICE B LP, CAMPUS INVESTORS 25 LP, CAMPUS INVESTORS 1 BUILDING LP, CAMPUS INVESTORS H BUILDING LP, CAMPUS INVESTORS D BUILDING LP, CAMPUS INVESTORS COTTAGES LP, CAMPUS INVESTORS OFFICE 2B LP, 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 LP, MANAGEMENT PARTNERSHIP-BENEFIT AND ELLIS ACQUISITION LP NEWTOWN SQUARE EAST, L.P., APPELLANT
v.
ZONING HEARING BOARD OF NEWTOWN TOWNSHIP, NATIONAL REALTY CORPORATION, NEWTOWN TOWNSHIP, BPG REAL ESTATE INVESTORS STRAW PRT, CAMPUS INVESTORS IFFICE B LP, CAMPUS INVESTORS 25 LP, CAMPUS INVESTORS 1 BUILDING LP, CAMPUS INVESTORS H BUILDING LP, CAMPUS INVESTORS D BUILDING LP, CAMPUS INVESTORS COTTAGES LP, CAMPUS INVESTORS OFFICE 2B LP, 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 LP, MANAGEMENT PARTNERSHIP-BENEFIT, ELLIS ACQUISITION LP



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

In these consolidated appeals, Appellant Newtown Square East, L.P. (NSE) appeals from several orders of the Court of Common Pleas of Delaware County (trial court). The orders pertain to NSE's validity challenge to the Planned Residential Development (PRD) Ordinance enacted by Newtown Township (the Township) in 2009 (PRD Ordinance), and to the trial court's imposition of an appeal bond on NSE.*fn1

In the appeal docketed at 137 C.D. 2011, NSE seeks to challenge the trial court's January 25, 2011 order, which granted BPG's request for the imposition of an appeal bond upon NSE. In the appeal docketed at 2390 C.D. 2010, NSE appeals orders of the trial court that (1) affirmed the ZHB's decision and order denying NSE's validity challenge, and (2) denied NSE's motion to consolidate NSE's appeal of the ZHB's validity challenge decision and order with NSE's appeal of the Board's approval of BPG's Tentative Plan.*fn2 We summarize the procedural and factual history below.

I. BACKGROUND

Following review by the Delaware County Planning Commission (in January 2009) and public hearings (in June and July 2009), in which representatives of both NSE and BPG participated, the Board enacted the Township's PRD Ordinance. The PRD Ordinance created a PRD Overlay District, comprised of approximately 222 acres that encompass property owned by BPG and NSE, as well as other land upon which is located a post office, a firehouse, an office building, and a convenience store. BPG owns approximately 218 acres in the PRD Overlay District and additional property in other zoning districts, including the Township's Special Use SU-1 District, the I Industrial District, and the C-1 Commercial District.

NSE filed a challenge to the validity of the PRD Ordinance with the ZHB on August 12, 2009, raising the following issues: (1) whether the PRD Ordinance violates Article VII of the Pennsylvania Municipalities Planning Code (MPC)*fn3 by (a) failing to require developers to identify on a tentative plan the specific uses of buildings and other structures and the location and width of proposed streets and, thereby, (b) permitting the location of buildings on a tentative plan to be conceptual and subject to free modification between the time of tentative plan approval and final plan approval;*fn4 and (2) whether the PRD Ordinance constitutes spot zoning.*fn5

The ZHB conducted hearings on NSE's challenge. During the course of the hearings, NSE sought to submit testimony of a witness who purportedly played a role in drafting the MPC. The ZHB rejected that testimony, reasoning that the evidence NSE sought to submit constituted legal opinions, which would be presented best through briefs to the ZHB. By decision and order dated May 5, 2010, the ZHB denied NSE's validity challenge.

In determining that the PRD Ordinance is valid, the ZHB reasoned that the PRD Ordinance is not invalid simply because its language is not identical to the enabling language contained in the MPC's PRD provisions (relating to the identification of the uses of buildings proposed for a PRD). The ZHB noted that the PRD Ordinance requires the same information to be included in a tentative plan as the MPC and, therefore, concluded that it is consistent with the MPC. Moreover, the ZHB determined that the provisions relating to public hearings on alterations to tentative plans when submitted for final approval essentially mirror the MPC's post-tentative plan approval process. Furthermore, the ZHB noted that the MPC PRD provisions do not require a municipality to define every term in a PRD Ordinance. Rather, when an ordinance does not define a term, adjudicators may resort to plain meaning. Thus, the ZHB rejected NSE's claim that the PRD Ordinance was invalid.

NSE appealed the ZHB's decision to the trial court and requested that the trial court consolidate this matter with NSE's appeal of the Board's decision approving BPG's Tentative Plan. BPG also sought an order from the trial court directing NSE to post an appeal bond. The trial court affirmed the ZHB's decision and order denying the validity challenge, concluding that the PRD Ordinance does not exceed the limits for such municipal legislation authorized by the MPC and that the requirements of the PRD Ordinance were consistent with the MPC's PRD provisions. The trial court concluded that where inconsistencies between the MPC and the PRD Ordinance exist, those inconsistencies were of such minor character that they did not render the PRD Ordinance invalid. With regard to BPG's request for an order directing NSE to post an appeal bond, the trial court issued findings of fact and conclusions of law on January 25, 2011, granting the bond petition and finding that NSE filed its appeal for the purpose of delaying BPG's development, that NSE's appeal was frivolous, and that NSE had little likelihood of success in its appeal. The trial court directed NSE to post $1,297,362.60 per month for every month NSE continues its appeal. The trial court also denied NSE's request to consolidate NSE's appeal of the ZHB's decision and order with NSE's appeal of the Board's approval of BPG's Tentative Plan.

NSE appealed from the trial court's orders to this Court,*fn6 raising several issues. First, as to the trial court's order pertaining to the validity challenge, NSE argues that the ZHB erred in concluding that the PRD Ordinance complies with the substantive provisions of the MPC authorizing a municipality's enactment of a PRD ordinance where (1) NSE alleges that the ZHB erroneously excluded the testimony of a drafter of the MPC; (2) the PRD Ordinance allegedly does not require a land developer to include in a tentative plan the specific use of and approximate location of buildings and other proposed structures; (3) the PRD Ordinance allegedly does not require a public hearing before the Board gives final approval of a PRD application; and (4) by virtue of the alleged failure of the PRD Ordinance to require a public hearing before final approval, the PRD Ordinance purportedly violates the due process rights of interested parties such as NSE, and is therefore void ab initio. Second, NSE argues that the trial court erred or abused its discretion in denying NSE's motion to consolidate. Third, NSE argues that the trial court erred in granting BPG's bond petition because (1) BPG filed its petition after NSE filed its notice of appeal with this Court and the appeal divested the trial court of jurisdiction under Pennsylvania Rule of Appellate Procedure 1701; (2) the trial court incorrectly concluded that NSE's appeal is frivolous; and (3) the trial court's decision to require NSE to post monthly bonds lacks a factual foundation, and the amount the trial court directed NSE to post is punitive.*fn7

II. DISCUSSION

A. Whether the Trial Court Erred in Concluding That the PRD Ordinance Complies With or Is Consistent

With the Substantive Provisions of the MPC?

In its overview of this argument, NSE contends that although the General Assembly, in adopting the PRD provisions of the MPC (Article VII), intended to provide municipalities with flexibility, municipalities may only adopt PRD ordinances that do not exceed the terms of the MPC. NSE relies upon this Court's decision in Abel v. Township of Middletown, 297 A.2d 525 (Pa. Cmwlth. 1972), in support of this proposition. The PRD ordinance at issue in Abel contained a procedural mechanism that required developers to obtain pre-approval of a developer's land use plan before the developer could apply for preliminary approval of a PRD. This Court concluded that the municipality's inclusion of ...


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