The Newtown Township Board of Supervisors enacted a Planned Residential Development Ordinance (“PRD Ordinance”) pursuant to state statute. Newtown Square East, L.P. (“NSE”), who 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 appealed the Board’s approval of BPG’s Tentative PRD Plan with the court of common pleas, which also affirmed, as did the Commonwealth Court. This appeal was then brought by landowner NSE challenging the validity of that ordinance and to the approval of a Tentative PRD Plan related to it.
NSE asserted 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. To support this claim, NSE emphasized 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. The court found that 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. It held that placement of such discretion with local authorities is consistent with “a prime objective” of Article VII of the MPC, to wit, “flexibility of development.”
NSE next claimed 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 failed to identify the use of proposed buildings, the Tentative Plan should not have been approved. However, 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 was waived. The court failed to see how NSE’s due process rights were implicated by BPG’s tentative plan designation of several possible uses permitted as of right for buildings proposed on its own property, and that 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. Accordingly the court found no merit in NSE’s claims, and affirmed the lower courts.
Newtown Square East, L.P. v Township of Newtown, 101 A. 3d 37 (PA. 9/24/2014)
The opinion can be accessed at: http://www.pacourts.us/assets/opinions/Supreme/out/J-58A-2013do%20-%201019545962646709.pdf