         [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.]
                IN THE SUPREME COURT OF PENNSYLVANIA
                             MIDDLE DISTRICT


NEWTOWN SQUARE EAST, L.P.,         :   No. 14 MAP 2013
                                   :
                  Appellant        :   Appeal from the Order of the
                                   :   Commonwealth Court dated December 29,
                                   :   2011 at No. 1474 CD 2010 which Affirmed
           v.                      :   the Order of the Delaware County Court of
                                   :   Common Pleas, Civil Division, dated June
                                   :   24, 2010 at No. 09-14594.
TOWNSHIP OF NEWTOWN,               :
                                   :   ARGUED: September 10, 2013
                  Appellee         :
                                   :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-1, L.P.,     :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-II, L.P.,    :
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       : No. 15 MAP 2013
NATIONAL REALTY CORPORATION,         :
                                     : Appeal from the Order of the
                 Appellant         :    Commonwealth Court dated December 29,
                                   :    2011 at No. 2390 CD 2010
                                   :    Affirming/Reversing the Order of the
           v.                      :    Delaware County Court of Common Pleas,
                                   :    Civil Division, dated October 28, 2010 at
                                   :    No. 10-4799.
ZONING HEARING BOARD OF            :
NEWTOWN TOWNSHIP, DELAWARE         :    ARGUED: September 10, 2013
COUNTY, PENNSYLVANIA,              :
                                   :
                  Appellee         :
                                   :
NEWTOWN TOWNSHIP,                  :
                                   :
                  Intervenor       :
                                   :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-1, L.P.,     :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-II, L.P.,    :
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        : No. 16 MAP 2013
NATIONAL REALTY CORPORATION,          :
                                      : Appeal from the Order of the
                 Appellant            : Commonwealth Court dated December 29,



        [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 2
                                   :    2011 at No. 137 CD 2011
                                   :    Affirming/Reversing the Order of the
           v.                      :    Delaware County Court of Common Pleas,
                                   :    Civil Division, dated January 25, 2011 at
                                   :    No. 10-4799.
ZONING HEARING BOARD OF            :
NEWTOWN TOWNSHIP, DELAWARE         :    ARGUED: September 10, 2013
COUNTY, PENNSYLVANIA,              :
                                   :
                  Appellee         :
                                   :
NEWTOWN TOWNSHIP,                  :
                                   :
                  Intervenor       :
                                   :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-1, L.P.,     :
BPG REAL ESTATE                    :
INVESTORS-STRAW PARTY-II, L.P.,    :
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      :
                                   :


                            DISSENTING OPINION


MR. JUSTICE EAKIN                         DECIDED: September 24, 2014



        [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 3
        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 N [and] the density of land use

1   53 P.S. §§ 10701-10713.



            [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 4
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 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


2 Although a mixed-use building is allowed under the PRD Ordinance and Article VII of
the MPC, BPG’s multi-use designations pertained to the entire sector itself; it did not
(continuedN)

           [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 5
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 N 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

(Ncontinued)
submit a designation for each particular mixed-use building apportioning each use to its
corresponding square footage.



           [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 6
be devoted to office and/or hotel use[,]” Board of Supervisors 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 N the density of

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



            [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 7
        (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 N.

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.




            [J-58A-2013, J-58B-2013 and J-58C-2013] [MO: McCaffery, J.] - 8
