Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

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

Supreme Court of Pennsylvania

September 24, 2014

NEWTOWN SQUARE EAST, L.P., Appellant
v.
TOWNSHIP OF NEWTOWN, Appellee, BPG REAL ESTATE INVESTORS S-TRAW 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 S-TRAW 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 S-TRAW 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

Argued September 10, 2013

Page 38

[Copyrighted Material Omitted]

Page 39

14 MAP 2013

Appeal from the Order of the Commonwealth Court dated December 29, 2011 at No. 1474 CD 2010 which Affirmed the Order of the Delaware County Court of Common Pleas, Civil Division, dated June 24, 2010 at No. 09-14594. Appeal allowed March 25, 2013 at 80 MAL 2012. Trial Court Judge: George A. Pagano, Judge. Intermediate Court Judges: Bonnie Brigance Leadbetter, President Judge; Kevin P. Brobson, Judge; James R. Kelley, Senior Judge.

15 MAP 2013

Appeal from the Order of the Commonwealth Court dated December 29, 2011 at No. 2390 CD 2010 Affirming/Reversing the Order of the Delaware County Court of Common Pleas, Civil Division, dated October 28, 2010 at No. 10-4799. Appeal allowed March 25, 2013 at 78 MAL 2012. Trial Court Judge: Chad F. Kenney, Sr., Judge. Intermediate Court Judges: Bonnie Brigance Leadbetter, President Judge; Kevin P. Brobson, Judge; James R. Kelley, Senior Judge.

16 MAP 2013

Appeal from the Order of the Commonwealth Court dated December 29, 2011 at No. 137 CD 2011 Affirming/Reversing the Order of the Delaware County Court of Common Pleas, Civil Division dated January 25, 2011 at No. 10-4799. Appeal allowed March 25, 2013 at 79 MAL 2012. Trial Court Judge: Chad F. Kenney, Sr., Judge. Intermediate Court Judges: Bonnie Brigance Leadbetter, President Judge; Kevin P. Brobson, Judge; James R. Kelley, Senior Judge.

14 MAP 2013

For Zoning Hearing Board of Newtown Township, PARTICIPANTS: Louis M. Kodumal, Esq., Vincent B. Mancini, Esq., Law Offices of Vincent B. Mancini & Associates.

For Newtown Square East, L.P., APPELLANT: Arlin M. Adams, Esq., Monica Nicole Clarke Platt, Esq. Schnader Harrison Segal & Lewis LLP, Nancy L. Winkelman, Esq., Schnader Harrison Segal & Lewis, L.L.P.; Joseph A. Damico Jr., Esq., Charles Graham Miller, Esq., John W. Nilon Jr., Esq., Petrikin, Wellman, Damico, Brown & Petrosa, P.C.

For Newtown Township, Township of Newtown, APPELLEE: Richard C. Sokorai, Esq., High Swath LLP.

For Homebuilders Association of Chester and Delaware Counties, APPELLEE AMICUS CURIAE: Ronald M. Agulnick, Esq.

For O'Neill Properties Group, L.P, the Brickstone Co., Korman Co., and Phil. Real Estate Council, APPELLEE AMICUS CURIAE: David James Bird, Esq., Reed Smith, LLP.

For Marple Newtown School District, APPELLEE AMICUS CURIAE: Mark A. Sereni, Esq., DiOrio & Sereni, L.L.P.

For BPG Real Estate Investors and BPG, INTERVENOR - APPELLEE: Robert L. Byer, Esq., Robert McCarthy Palumbos, Esq., Duane Morris LLP; Marc B. Kaplin, Esq., Kaplin Stewart Meloff Reiter & Stein, P.C.; Andrew J. Reilly, Esq Swartz Campbell, L,L.C.

15 MAP 2013

For Newton Township, INTERVENOR: Richard C. Sokorai, Esq. High Swartz LLP.

For Newton Square East, L.P., APPELLANT: Arlin M. Adams, Esq., Monica Nicole Clarke Platt, Esq., Nancy L. Winkelman, Esq., Schnader Harrison Segal & Lewis, L.L.P.; Joseph A. Damico Jr, Esq., Charles Graham Miller, Esq., John W. Nilon Jr, Esq., Petrikin, Weliman, Damico, Brown & Petrosa, P.C.

For Zoning Hearing Board of Newtown Township, APPELLEE: Louis M. Kodumal, Esq., Vincent B. Mancini, Esq., Law Offices of Vincent B. Mancini & Associates

For Homebuilders Association of Chester and Delaware Counties, APPELLEE AMICUS CURIAE: Ronald M. Agulnick, Esq.

For O'Neill Properties Group, L.P, the Brickstone Co., Korman Co., and Phil. Real Estate Council, APPELLEE AMICUS CURIAE: David James Bird, Esq. Reed Smith, LLP.

For Marple Newtown School District, APPELLEE AMICUS CURIAE: Mark A. Sereni, Esq., DiOrio & Sereni, L.L.P.

For BPG Real Estate Investors and BPG, INTERVENOR - APPELLEE: Robert L. Byer, Esq., Robert McCarthy Palumbos, Esq., Duane Morris LLP.; Marc B. Kaplin, Esq., Kaplin Stewart Meloff Reiter & Stein, P.C. Andrew J. Reilly, Esq. Swartz Campbell, LL.C.

16 MAP 2013

For Newtown Township, INTERVENER: Richard C. Sokorai, Esq., High Swartz LLP.

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

For Zoning Hearing Board of Newtown Township, APPELLEE: Louis M. Kodumal, Esq., Vincent B. Mancini, Esq., Law Offices of Vincent B. Mancini & Associates

For Homebuilders Association of Chester and Delaware Counties, APPELLEE AMICUS CURIAE: Ronald M. Agulnick, Esq.

For O'Neill Properties Group, L.P, the Brickstone Co., Korman Co., and Phil. Real Estate Council, APPELLEE AMICUS CURIAE: David James Bird, Esq. Reed Smith, LLP.

For Marple Newtown School District, APPELLEE AMICUS CURIAE: Mark A. Sereni, Esq., DiOrio & Sereni, L.L.P.; Robert L. Byer, Esq., Robert McCarthy Palumbos, Esq., Duane Morris, L.L.P.; Marc B. Kaplin, Esq., Kaplin Stewart Meloff Reiter & Stein, P.C.; Andrew J. Reilly, Esq., Swartz Campbell, LL.C.

MR. JUSTICE McCAFFERY. CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ. MR. JUSTICE McCAFFERY. Mr. Chief Justice Castille and Messrs. Justice Baer and Stevens join the opinion. Mr. Justice Eakin files a dissenting opinion in which Mr. Justice Saylor and Madame Justice Todd join.

OPINION

Page 40

MR. McCAFFERY, JUSTICE

On July 13, 2009, pursuant to enabling legislation in Article VII of the Municipalities Planning Code[1] (" 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.

Page 41

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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.