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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 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?

Page 42

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, 401 Pa. 211, 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 (Pa. 2013); Newtown Square East, L.P. v. Township of Newtown, 619 Pa. 393, 64 A.3d 625 (Pa. 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 (Pa. 2009); Upper Salford Township v. Collins, 542 Pa. 608, 669 A.2d 335, 336 (Pa. 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 (Pa. 2012); Dechert LLP v. Commonwealth of Pennsylvania, 606 Pa. 334, 998 A.2d 575, 579 (Pa. 2010). The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). The best indicator of the legislature's intent is the statute's plain language. Dechert, supra. Words and phrases are to be construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b). However, when the words of the statute are not explicit, the General Assembly's intent may be ascertained by considering, inter alia, the object to be attained by the statute and the consequences of a particular interpretation. 1 Pa.C.S. § 1921(c). We presume that the General Assembly does not intend a result that is absurd or unreasonable, but does intend for the entire statute to be effective and certain. 1 Pa.C.S. § 1922.

A local governing body is properly afforded deference in interpreting its own zoning ordinance. Broussard v. Zoning Board of Adjustment of the City of Pittsburgh, 589 Pa. 71, 907 A.2d 494, 500 (Pa. 2006); Aldridge v. Jackson Township, 983 A.2d 247, 254 (Pa.Cmwlth. 2009). Our appellate review of the zoning ordinance at issue is limited to determining whether the local governing body abused its discretion or committed an error of law. Broussard, supra at 498; Upper Salford Township v. Collins, supra at 337; Ligo v. Slippery Rock Township, 936 A.2d 1236, 1241 n.5 (Pa.Cmwlth. 2007); Kang, supra at 327 n.7.

MPC

Several portions of the MPC are relevant to our analysis, beginning with the MPC's definition of a PRD, as follows:

" Planned residential development," an area of land, controlled by a landowner, to be developed as a single entity for a number of dwelling units, or combination of residential and nonresidential uses, the development plan for which does not correspond in lot size, bulk, type of dwelling, or use, density, or intensity, lot coverage and required open space to the regulations established in any one district created, from time to

Page 43

time, under the provisions of a municipal zoning ordinance.

53 P.S. § 10107 (Definitions).

As set forth in the MPC Article VII (Planned Residential Development), the purposes of a PRD include, most relevantly, the following:

... to encourage innovations in residential and nonresidential development and renewal 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; ... to provide a procedure which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development ... and to insure that the increased flexibility of regulations over land development authorized herein is carried out under such administrative standards and procedures as shall encourage the disposition of proposals for land development without undue delay ... .

53 P.S. § 10701 (emphases added).

Section 10702 grants the governing body of each municipality the authority to set forth the standards, conditions, and regulations for a PRD, as well as the procedures pertaining to the application for, hearing on, and tentative and final approval of a PRD, all of which must be consistent with the provisions of Article VII. The standards, conditions, and regulations most relevant to the instant case include the following:

(b) The provisions adopted pursuant to [Article VII] shall set forth the uses permitted in a planned residential development, which uses may include but shall not be limited to:
(1) Dwelling units of any dwelling type or configuration, or any combination thereof.
(2) Those nonresidential uses deemed to be appropriate for incorporation in the design of the [PRD].

53 P.S. § 10705(b) (Standards and conditions for planned residential development).

Section 10707 sets forth the requirements for an application for tentative approval of a PRD, which in relevant part are as follows:

§ 10707. Application for tentative approval of planned residential development
In order to provide an expeditious method for processing a development plan for a planned residential development under the provisions adopted pursuant to the power granted herein, and to avoid the delay and uncertainty which would arise if it were necessary to secure approval, by a multiplicity of local procedures, of a plat of subdivision as well as approval of a change in the zoning regulations otherwise applicable to the property, it is hereby declared to be in the public interest that all procedures with respect to the approval or disapproval of a development plan for a planned residential development and the continuing administration thereof shall be consistent with the following provisions:
(1) An application for tentative approval of the development plan for a planned residential development shall be filed by or on behalf of the landowner.
* * * *
(4) The provisions shall require only such information in the application as is reasonably necessary to disclose to the governing body or the planning agency:
* * * *

Page 44

(ii) the density of land use to be allocated to parts of the site to be developed;
(iii) the location and size of the common open space ...;
(iv) the use and the approximate height, bulk and location of buildings and other structures;

53 P.S. § 10707 (emphases added).

Pursuant to Section 10708 (Public Hearings), " a public hearing pursuant to public notice" on an application for tentative approval of a PRD plan must be held within sixty days after the application is filed. Then, the governing body or planning agency must, " by official written communication" including findings of fact and reasons for the action, take one of three actions: grant tentative approval of the PRD plan, grant tentative approval subject to specified conditions, or deny tentative approval. 53 P.S. § 10709(a) and (b).

The requirements and procedures for final approval of a PRD plan are set forth in Section 10711. An application for final approval " shall include any drawings, specifications, covenants, easements, performance bond and such other requirements as may be specified by ordinance, as well as any conditions set forth in the official written communication at the time of tentative approval." 53 P.S. § 10711(a). Importantly, a public hearing on an application for final approval is not required " provided the development plan ... submitted for final approval, is in compliance with the development plan theretofore given tentative approval and with any specified conditions attached thereto." Id. If the PRD plan submitted for final approval does have variations from the plan given tentative approval, then the governing body or planning agency may refuse to grant final approval of the plan. 53 P.S. § 10711(c). In such case the landowner may either refile the application for final approval without the variations or request a public hearing on his application for final approval. Id.

PRD Ordinance

As mandated by the MPC § 10705(b), quoted supra, the PRD Ordinance set forth the uses permitted in the PRD at issue here. Specifically, the PRD listed the following twenty-one types of uses permitted as of right.

302. Use Regulations
A. Uses as of right:
1. Single-family dwellings.
2. Two-family dwellings.
3. Townhouses.
4. Multifamily dwellings, including residences in mixed-use commercial/residential buildings
5. Retail store(s).
6. Personal service establishments, tailor, barber, beauty, shoe repair, spa, dressmaking shop, and other personal service shop or store.
7. Bank or other similar financial institution, including a drive in banking facility or automated teller facility.
8. Business, administrative, executive, governmental, professional, sales and/or similar offices.
9. Places of indoor amusement, recreation or assembly.
10. Movie theaters.
11. Restaurant, cafe, including establishments dispensing or serving food for consumption on the premises outdoors. Drive-in food stands shall not be permitted.
12. Grocery or convenience store.
13. Hotel or inn.
14. Educational institution.
15. Conference center.
16. Public and private garages and parking lots.

Page 45

17. Civic uses such as a police station, municipal office, fire station, post office, EMS service, and transit facility.
18. Playgrounds, parks, tot lots or open spaces.
19. Health club, fitness center, indoor squash, tennis, or racquetball facilities, or other similar uses.
20. Nursery schools and day care centers.
21. Accessory use on the same lot with and customary and incidental to any of the foregoing.

PRD Ordinance, Article III, § 302.A.

Section 302.B of the PRD Ordinance sets forth the " Mix Requirements" for a PRD, specifying that in mixed-use areas, at least 10% but not more than 50% of the new floor area shall be devoted to residential uses, and at least 20% but no more than 75% shall be devoted to retail, restaurant, markets, or cinema uses.

Article IV of the PRD Ordinance details the submission and review procedures for applications for tentative approval and for final approval of a PRD, as follows.

402. APPLICATION FOR TENTATIVE APPROVAL.
* * * *
402.4 Tentative Plan Requirements. The intent of the Tentative Plan submission requirements is to provide the schematic design and planning information specifically required by Section 707(4) of [the MPC] ... .
* * * *
The Tentative Plan shall include:
* * * *
H. A Proposed Overall Development Plan including:
1. A designation and location of the intended uses of all portions of the proposed development.
* * * *
6. The location, paving, and right of way widths of all existing streets and proposed streets and public ways. The location of proposed local streets with in an individual Development Section shall be considered to be for conceptual purposes only and may be modified between the time of Tentative Plan approval and Final Plan submission.
7. The approximate height, bulk and location of buildings and other structures. It is specifically recognized that the locations and configurations of buildings shown on the Overall Development Plan may change between Tentative Plan approval and Final Plan approval.

PRD Ordinance, Article IV, § 402.4 (emphasis added).

407. APPLICATION FOR FINAL PLAN APPROVAL.
407.1 An application for Final Plan Approval may be made for all the land included in the PRD or for one or more specific Development Sections as delineated on the approved Tentative Plan ... . If the application for Final Plan approval is in accordance with the approved Tentative Plan and any specified conditions, a public hearing need not be required.

PRD Ordinance, Article IV, § 407.1.

408. REVIEW OF FINAL PLAN.
* * * *
408.2 ... A public hearing on an application for Final Plan Approval shall not be required provided the submission for final approval is determined to be consistent with this Article and the official written communication granting Tentative Plan approval.

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408.3 In the event the Final Plan as submitted contains variations from the approved Tentative Plan, Board of Supervisors may refuse to grant Final Plan approval, and ... shall so advise the Applicant in writing of its refusal, setting forth in the notice the reasons why one or more of the variations are not in the public interest. In the event an application for Final Plan Approval is denied approval, the Applicant may either:
A. Refile his application for Final Approval without the variations objected to; or
B. File a written request with the Board of Supervisors that it hold a public hearing on his application for Final Plan Approval.

PRD Ordinance, Article IV, § § 408.2 and 408.3.

I. Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township

Before the Commonwealth Court, NSE argued that the Zoning Board had erred in concluding that the PRD Ordinance was consistent with the above provisions of the MPC, Article VII, because, inter alia, " [i] the PRD Ordinance [ ] 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[, and] [ii] the PRD Ordinance [ ] does not require a public hearing before the Board gives final approval of a PRD application," thereby purportedly violating the due process rights of interested parties. NSE v. Zoning Board, 38 A.3d at 1022 (emphases added).

i. Use Designation Challenge

The Commonwealth Court formulated NSE's use designation challenge to the PRD Ordinance as follows: " whether the MPC, by requiring a PRD Ordinance to include provisions that require a tentative plan to identify the use of buildings, requires developers to identify the specific use of a building (and/or parts thereof) rather than a categorical use, such as 'retail use' or 'commercial use.'" NSE v. Zoning Board, 38 A.3d at 1024 (emphasis in original). Citing the goal of the MPC, Article VII, to provide flexibility in the creation of PRD's and the exclusive, broad categories of use (residential and non-residential) provided in the statutory definition of PRD's, see 53 P.S. 10107, quoted supra, the Commonwealth Court concluded that subsection 707(4)(iv)'s use designation provision refers not to a specific use, but rather to " a category of uses [that] enables the governing body to determine whether a tentative plan proposing a mixed-use area will satisfy the desired ratios of residential to non-residential uses reflected in a PRD ordinance." NSE v. Zoning Board, 38 A.3d at 1026. The court determined that the " MPC suggests no reason from a developmental perspective why more than a categorical identification of proposed use would be needed at the tentative plan approval stage." Id. Accordingly, the Commonwealth Court declined to afford NSE relief.

Before this Court, NSE has now abandoned its claim that the PRD Ordinance is invalid because it fails to require a landowner to include in a tentative PRD plan the specific use of each building. Recognizing that the PRD Ordinance at issue here sets forth numerous categories of uses permitted as of right, see PRD Ordinance § 302.A, supra (listing 21 permitted uses, including various types of family dwellings, retail stores, business offices, theaters, restaurants, hotels, educational institutions, nursery schools, garages, civic uses, etc.), NSE now acknowledges that the PRD Ordinance " requires the appropriate level of specificity regarding identification of 'use" in a Tentative Plan."

Page 47

NSE's Reply Brief at 8 n.3; see also id. at 8 (" An example of what NSE means by 'specific types of uses' is found in Newtown Township's own PRD Ordinance, which designates 21 permissible 'uses' ... ." ).

While abandoning its claim that the PRD Ordinance at issue here is inconsistent with the MPC's use designation requirement of § 10707(4)(iv), NSE maintains that the Commonwealth Court nevertheless erred in concluding that designation of use merely as either residential or non-residential is sufficient under the MPC Article VII. NSE's Brief at 21-33; see NSE's Reply Brief at 1 (" The primary issue in this case is whether Section 707(4)(iv) of Article VII of the ... MPC requires a developer in its Tentative Plan for a ... PRD to do more than identify merely whether a proposed use is 'residential' or 'nonresidential.'" ). However, this question is not properly before this Court. Insofar as the Commonwealth Court suggested that a designation of either residential or nonresidential was sufficient to satisfy the use designation requirement of the MPC § 10707(4)(iv), the court's determination is dicta. Whether a PRD ordinance that allowed usage at the tentative plan stage to be designated as simply residential or nonresidential was not a question before the Commonwealth Court, and is not a question properly before this Court. We decline to rule on a theoretical ordinance.

ii. Public Hearing Challenge

As mentioned above, NSE also asserted before the Commonwealth Court that the PRD Ordinance is invalid because it does not require a public hearing prior to the Township Board's approval of a final PRD plan. The court held that there was no " substantive difference in the process afforded by the MPC and the PRD Ordinance." NSE v. Zoning Board, 38 A.3d at 1028. Consistent with subsection 10711(a) of the MPC, the PRD Ordinance does not require a public hearing at the final approval stage if the application for final plan approval is in accordance with and is consistent with the approved tentative plan. See PRD Ordinance § 407.1 and § 408.2. Under both the MPC and the PRD Ordinance, a public hearing is required at the final plan approval stage only if the PRD plan submitted for final approval has " variations" from the approved tentative plan, the Township Board accordingly refuses to grant final plan approval, and the landowner requests a public hearing. Compare 53 P.S. § 10711(c) and PRD Ordinance § 408.3. Thus, as the Commonwealth Court correctly held, " the PRD Ordinance is consistent with the provisions of the MPC regarding the approval of and potential public hearings on applications for final plan approval." NSE v. Zoning Board, 38 A.3d at 1028.

Before this Court, NSE emphasizes two provisions of the PRD Ordinance, to wit, § § 402.4(H)(6) and (H)(7), which provide, respectively, that the location of proposed local streets " may be modified" and that the locations and configuration of buildings " may change" between the time of Tentative Plan approval and Final Plan submission or approval. Grounding its argument in these two provisions, NSE asserts that the Commonwealth Court erred, and maintains that the PRD Ordinance is invalid because it permits uses to " float" between the tentative plan and final plan stages, allegedly in violation of the MPC. NSE's Brief at 33-34; NSE's Reply Brief at 8 n.3.

NSE's argument is meritless. The PRD Ordinance must be interpreted as a whole, and thus the modifications or changes permitted under § § 402.4(H)(6) and (H)(7) must be read in the context of

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the procedures set forth for approval of a final plan. Specifically, § 408.3 provides that the Board may refuse to approve the final plan if it " contains variations from the approved Tentative Plan." This language of the PRD Ordinance is nearly identical to the language of the corresponding provision of the MPC.[6] See 53 P.S. § 10711(c) (" In the event the development plan as submitted contains variations from the development plan given tentative approval, the approving body may refuse to grant final approval ... ." ) (emphasis added). The use of the permissive " may" in § 10711(c) of the MPC demonstrates the General Assembly's intention to grant discretion to local authorities in assessing whether " variations" from an approved tentative plan should warrant refusal to grant approval of a final plan.[7] We also note that in determining whether to refuse final approval of a PRD plan, the local authorities must be guided by " the public interest" under both the MPC, see 53 P.S. § 10711(c), and the PRD Ordinance, see § 408.3.

Placement of such discretion with local authorities is consistent with " a prime objective" of Article VII of the MPC, to wit, " flexibility of development." 53 P.S. § 10705 (e)(3); see also § 10701 (stating that " increased flexibility of regulations over land development [is] authorized [in Article VII]" and requiring " administrative standards and procedures as shall encourage the disposition of proposals for land development without undue delay" ). Article VII recognizes that development of a PRD may take place over a period of years, see § 10705(c) and (e), and explicitly provides for consideration to be given to conditions " at the time of development." See 53 P.S. § 10701 (" ... in aid of these purposes [of Article VII], to provide a procedure which can relate the type, design and layout of residential and nonresidential development to the particular site and the particular demand for housing existing at the time of development" ); § 10705(i) (stating that all standards developed pursuant to Article VII " shall not unreasonably restrict the ability of the landowner to relate his development plan to the particular site and to the particular demand for housing existing at the time of development" ); § 10705(e)(3) (stating that the precise location of common open space can be deferred until the filing of an application for final approval " so that flexibility of development which is a prime objective of this article, can be maintained" ). Thus, the provisions of the MPC, Article VII, anticipate an accommodation of modifications in the development plan as the approval process and physical development proceed. The PRD Ordinance merely reflects the flexibility inherent in the MPC, Article VII. NSE's claims to the contrary have no merit.[8]

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

In the third and final issue before this Court, NSE claims that the Commonwealth Court erred in holding that BPG's Tentative Plan complies with the PRD Ordinance and the MPC because the Tentative Plan allegedly fails to identify the use of proposed buildings. NSE asserts that the Tentative Plan should not have been approved, and asks this Court to reverse the Commonwealth Court's decision and hold that the Tentative Plan is invalid. The focus of NSE's claim is the following table from the Township Board's written approval of BPG's Tentative Plan:

1. The Tentative PRD Plan is approved with the maximum density and intensity of use as outlined below:
Sector 1. In addition to the existing buildings, there shall be no more than:
A. Commercial/retail/restaurant 464,560 square feet
B. Office 136,415 square feet
C. Residential 310 units which shall contain no more than 480,000 square feet of floor area
D. Hotel 120,000 square feet
E. Up to an additional 100,000 square feet of flexible space that may be devoted to office and/or hotel use.

In Re: Application of BPG Real Estate Investors -- Straw Party -- 1, L.P. et al for Approval of Tentative PRD Plan Before the Board of Supervisors of Newtown Township, Findings of Fact, Conclusions of Law and Decision, dated 12/3/09, at 11; see also id. at 6¶ 16 (indicating that the information in the table above reflects BPG's

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proposal for development of Sector 1 of the PRD tract).

NSE argues that neither the PRD Ordinance nor the MPC permits the designation of up to 464,560 square feet for " commercial/retail/restaurant" use, or up to 100,000 square feet as " flexible space" for some combination of " office and/or hotel use." NSE's Brief at 36-37. In NSE's view, such " open-ended" designations improperly grant the developer the choice of multiple possible uses and allow " virtually unlimited change" between the tentative and final plan stages, thereby rendering BPG's Tentative Plan invalid. Id. In addition, NSE argues that the term " commercial" is not a valid use designation because it does not " provide the requisite meaningful information about the specific use proposed." Id. at 37.

In upholding the Township Board's approval of BPG's Tentative Plan, the Commonwealth Court relied on its determination that the use designation provisions of the PRD Ordinance are consistent with the MPC, Article VII. Newtown Square East, L.P. v. Township of Newtown, 38 A.3d at 1014-15 & n.8 (citing Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township, 38 A.3d at 1018). In addition, the court noted that NSE had not raised before the Township Board a claim that " commercial" was an improper and invalid use designation. Id. at 1015 n.9. However, despite concluding that NSE had waived its claim as to the term " commercial," the Commonwealth Court nonetheless addressed and rejected the claim on the merits, concluding as follows: " [W]e have no difficulty concluding that, when read together, the provisions of the PRD Ordinance permit the identification of uses by the categorical designation 'commercial' with the understanding that the approval the Board renders under such circumstances is limited to uses permitted as of right." Id. at 1016.

In agreement with the Commonwealth Court, our review of the record indicates that NSE indeed did not claim before the Township Board that " commercial" is an invalid use designation under the PRD Ordinance and the MPC, Article VII. NSE's own expert land planner witness, Thomas J. Comitta, testified on cross-examination during the hearing before the Township Board that " commercial" is a permitted use under the PRD Ordinance, as revealed in the following excerpt from the notes of testimony.

BPG Counsel: Okay. So, now, you heard [witness Dennis Glackin's][9] testimony. He said that this [tentative] plan shows and designates commercial uses, office uses and residential uses, correct?
Witness: And others, but yes. He said all those.
BPG Counsel: And hotel?
Witness: Yes.
BPG Counsel: Okay. Is a residential use permitted under the Ordinance?
Witness: Yes.
BPG Counsel: Is a commercial use permitted under the Ordinance?
Witness: Yes.
BPG Counsel: Is a hotel use permitted under the Ordinance?
Witness: Yes.
BPG Counsel: And is an office use permitted under the Ordinance?
Witness: Yes.

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BPG Counsel: So, the statement that [witness Dennis Glackin] made that we have designated the uses that will be on the plan are all permitted uses?
Witness: That's correct.

Notes of Testimony (" N.T." ), Hearing before the Township Board concerning the Application for BPG Towne Center - Tentative Plan, 10/7/09, at 107-08 (footnote and emphasis added).

Because NSE never raised before the Township Board a claim that " commercial" was an invalid use designation, which was not enumerated, defined, or permitted under the PRD Ordinance, this claim has been waived.

The essence of NSE's remaining claim is that neither the PRD Ordinance nor the MPC, Article VII, permit a developer to satisfy the use designation requirement by indicating several possible categories of permitted use for a proposed building at the tentative plan stage. Rather, in NSE's view, a developer must designate a single category of permitted use for each building at the tentative plan stage.[10] See NSE's Brief at 37 (" The MPC entitles affected parties to know [at the tentative plan stage], for example, whether a developer proposes a retail shop, a movie theater, a bank, an indoor amusement park, a hotel, a conference center, and so forth." ).[11] NSE's sole argument for this position is that such specific designation of use for each proposed building is required to " comport with the MPC's procedural due process protections" of adequate notice and a meaningful opportunity to be heard at a public hearing. NSE's Brief at 36.

We cannot agree. NSE cites no prevailing law to support its interpretation of procedural due process guarantees in the context of a challenge to a plan submitted pursuant to a PRD ordinance or any other type of zoning ordinance. We fail to see how NSE's due process rights are implicated by BPG's tentative plan designation of several possible uses permitted as of right for buildings proposed on its own property.

As this Court has repeatedly recognized, " Article I, Section 1 of the Pennsylvania Constitution protects the citizen's right to the enjoyment of private property, and governmental interference with this right is circumscribed by the due process provisions of the Fifth and Fourteenth Amendments to the United States Constitution." Township of Exeter v. Zoning Hearing Board of Exeter Township, 599 Pa. 568, 962 A.2d 653, 659 (Pa. 2009) (citation omitted). Of course, this property right may be reasonably limited by zoning ordinances enacted pursuant to a municipality's police power. Id.; In re Appeal of Realen Valley Forge Greenes Associates, 576 Pa. 115, 838 A.2d 718, 727-28 (Pa. 2003). However, because restrictions imposed by zoning ordinances are in derogation of a landowner's property rights, they must be strictly construed. See, e.g., Cleaver v. Board of Adjustment of Tredyffrin Township, 414 Pa. 367, 200 A.2d 408, 412 (Pa. 1964); Philadelphia Art Alliance v. Zoning Board of Adjustment of City of Philadelphia, 377 Pa. 144, 104 A.2d 492, 494 (Pa. 1954); Appeal of Lord, 368 Pa. 121, 81 A.2d 533, 535, 43 Mun. L Rep. 16 (Pa. 1951); Hess v. Warwick Township Zoning Hearing Board, 977 A.2d 1216, 1221 (Pa.Cmwlth. 2009) (reiterating that

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" generally a zoning ordinance should be construed in a manner that does not, by mere implication, fetter a landowner's reasonable use of his land" ); Aldridge v. Jackson Township, 983 A.2d 247, 253 (Pa.Cmwlth. 2009) (citing Appeal of Gilden, 406 Pa. 484, 178 A.2d 562, 566 (Pa. 1962) for the proposition that " restrictions on a property owner's right to free use of his property must be strictly construed and all doubts resolved in his favor" ).[12] Here, nothing in the PRD Ordinance or the MPC, Article VII, would suggest that a landowner cannot designate several potential uses permitted as of right for a proposed building at the tentative plan stage, and we will not read such a restriction into either text.

Furthermore, as we have discussed, supra, a prime objective of Article VII of the MPC is flexibility of development, and Article VII authorizes increased flexibility of regulations over land development. See text, supra (citing 53 P.S. § § 10705(e)(3) and 10701). With respect to an application for tentative approval of a PRD, Article VII seeks " to provide an expeditious method for processing a development plan ... and to avoid the delay and uncertainty which would arise if it were necessary to secure approval, by a multiplicity of local procedures, of a plat of subdivision." 53 P.S. § 10707. NSE's interpretation of the procedural due process guarantees applicable to the PRD process would presumably necessitate a new public hearing every time a landowner/developer of a PRD sought to change, at least at the tentative plan stage, the designated use of a proposed building from one use permitted as of right to a different use permitted as of right. Such a cumbersome procedure is incompatible with, and indeed is the antithesis of, the MPC, Article VII's emphasis on increased flexibility with respect to land development and regulations thereof.

BPG stresses that NSE's position " would require developers to have contracts for sale or leases in place before seeking tentative approval. Absent a contract or lease, no developer could have confidence that a particular building would be an office, movie theater, restaurant, convenience store, personal service establishment, or other specific use." BPG's Brief at 26. As the Commonwealth Court concluded, requiring contracts at this early stage of development is inconsistent with " the practical reality involved in non-residential uses -- that they may change during the course of the approval process and even thereafter" due to factors beyond the control of a landowner/developer. Newtown Square East, L.P. v. Zoning Hearing Board of Newtown Township, 38 A.3d at 1025, 1027. We agree with BPG and the Commonwealth Court that the flexibility of the MPC, Article VII, was intended to address, inter alia, these practical realities.[13]

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NSE's restrictive interpretation of the procedural due process guarantees mandated by the MPC, Article VII, and the PRD Ordinance have no basis in the text of the enactments, our decisional law, or the policy of flexibility inherent in a PRD. There is no merit to NSE's final claim.

Orders affirmed.

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.

DISSENTING OPINION

MR. EAKIN, JUSTICE

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 ... [and] the density of land use 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

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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 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 ... 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 be devoted to office and/or hotel use[,]" Board of Supervisors

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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 ... the density of land use to be allocated to parts of the site to be developed ... [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 ... grant such development plan final approval ....
(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 ....

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.


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