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Key Topic: Zoning Validity Challenges

Applicant for preliminary plan under PRD provisions was not required to identify specific uses within commercial buildings depicted on the plan.

Newtown Square E. L.P. v. Twp. of Newtown, 101 A.3d 37 (Pa. 2014).

Intervenors submitted an application under an anticipated Planned Residential Development Ordinance for approval of their preliminary PRD plan. The Board of Supervisors orally approved the preliminary plan, but did not issue its written decision until over 50 days later.  Objector filed a challenge to the Ordinance as being inconsistent with the MPC and appealed the Plan approval within the time periods prescribed by the MPC.  Objectors argued the preliminary plan should have been denied because the plan failed to identify specific uses for commercial buildings depicted on the plan.

The Zoning Hearing Board determined that the minor textual variations from the relevant provisions of the MPC did not create an inconsistency or conflict therewith.  On appeal, the trial court affirmed.  In addition, the trial court affirmed the Township's approval of the preliminary plan.  Specifically, the trial court determined that the preliminary plan "met the requirements of the PRD Ordinance and that the Board's approval of the [Plan] was supported by substantial credible evidence."   Objector appealed both decisions to the Commonwealth Court.  The Commonwealth Court upheld the validity of the Ordinance and the Township's approval of the preliminary plan. 

The Pennsylvania Supreme Court agreed and found nothing in the Ordinance or the MPC to suggest that an applicant cannot designate multiple potential uses for a building.  Moreover, the Court found that requiring an applicant to lock-in certain uses at such an early stage is inconsistent with commercial development because it is a fact that commercial developer's plans may change during the approval process due to factors beyond an applicant's control.  The Court concluded that it agreed with the Applicant and the Commonwealth Court that the flexibility of the MPC is intended to address those practical realities.
 

 

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