[J ] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : CONCURRING OPINION

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1 [J ] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT CAROL STUCKLEY, JANE AND JOHN JOHNSON, GENE EPSTEIN, KRIS RILEY, JOHN MELSKY, RUTH ANN MELSKY-MOORE, OTTO SCHNEIDER, GERTRUDE SCHNEIDER, JAMES DEFALCO, PAM FITZPATRICK, TAYLOR BAUDELEY, LEO FITZPATRICK, RACHEL BAUDELEY, FRANCES BIELSKI, NICK SEIBEL, EDWIN BIELSKI, AND THERESA PARRILLA v. ZONING HEARING BOARD OF NEWTOWN TOWNSHIP AND BOARD OF SUPERVISORS OF UPPER MAKEFIELD TOWNSHIP v. TOLL BROTHERS, INC., DOLINGTON LAND, LLP, TOLL PA XIII LP, LEO HOLT, Intervenors APPEAL OF TOLL BROTHERS, INC, DOLINGTON LAND, LLP, AND TOLL PA XIII LP, Intervenors No. 17 MAP 2012 ARGUED September 12, 2012 Appeal from the order of the Commonwealth Court at No. 758 CD 2010 dated 03/17/2011, reconsideration denied , affirming the order of the Bucks County Court of Common Pleas, Civil Division, at No dated 03/25/2010. CONCURRING OPINION MR. JUSTICE BAER DECIDED October 30, 2013

2 I concur in the result. I join the reasoning of the Majority in concluding that Appellees (Neighbors), as mere parties to the hearing under 53 P.S (3), did not have a right to continue to challenge the Joint Municipal Zoning Ordinance No. 1983, as amended in 2006, after Leo Holt, the party appellant under 53 P.S , withdrew his challenge. 1 However, while I agree with the Majority s reasoning on the merits, I would not reach the merits and, instead, would dismiss this case as moot following the repeal and reenactment of Ordinance No for reasons not discussed in the Majority Opinion. Accordingly, I find myself in a concurring posture. Recognizing our longstanding prohibition against deciding moot issues, which would result in impermissible advisory opinions, the parties have presented extensive and nuanced arguments regarding mootness. 2 See Com., Dept. of Envtl. Res. v. Jubelirer, 614 A.2d 204, (Pa. 1992). As we have noted, Mootness poses a question of justiciability and is related to the concepts of standing and ripeness; all three are concerned with the proper timing of litigation. Town of McCandless v. McCandless Police Officers Ass'n, 901 A.2d 991, 1002 (Pa. 2006). Toll Brothers argues that the case is moot for three reasons. First, it asserts that the case became moot when Ordinance No was repealed prior to the submission of any land development plans, such that no rights or liabilities vested in the parties prior to the repeal, pursuant to 1 Pa.C.S. 1962, discussed infra. Second, Toll Brothers 1 As set forth in the Majority Opinion, the Appellees in this case are neighboring property owners who were granted the status of parties to the hearing during the proceedings related to Holt s challenge to the relevant ordinance, but who did not file their own challenge or join Holt s challenge. Additionally, the Upper Makefield Township Board of Supervisors files a brief as an appellee. I will refer to both these parties collectively as Neighbors. 2 The parties do not suggest that the case at bar implicates any of the exceptions to the mootness doctrine. [J ] - 2

3 observes that no challenge was brought against the reenacted ordinance, Ordinance No. 2007, under which Toll Brothers did submit plans and was granted land development approvals. Finally, Toll Brothers contends that the third ordinance, Ordinance No. 2010, mooted the challenge because that ordinance repealed the portions of Ordinance No (as reenacted from Ordinance No. 1983), which were challenged originally by Holt. As I conclude that the case is moot for the first two reasons, I need not address the parties arguments relating to Ordinance No As noted by the Majority, the question of mootness in this case involves the repeal and reenactment of an ordinance, which requires consideration of 1 Pa.C.S. 1962, entitled Repeal and reenactment Whenever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continued in active operation. All rights and liabilities incurred under such earlier statute are preserved and may be enforced The parties properly focus their argument on whether any rights or liabilities vested in either Toll Brothers or the challengers prior to the repeal of Ordinance No The dispute centers on whether certain land development documents submitted by Toll Brothers prior to the repeal of Ordinance No were sufficient to trigger rights and liabilities under the Municipal Planning Code (MPC). The MPC requires that anyone challenging the validity of an ordinance on substantive grounds must be aggrieved by a use or development permitted on the land of another by an ordinance. 53 P.S (b). 3 3 Although not applicable to this case, the MPC also provides that a landowner may challenge an ordinance that restricts or prohibits the use or development of his land, pursuant to 53 P.S (a). [J ] - 3

4 The parties disagree as to when a challenger is aggrieved by a use or development permitted on the land of another by an ordinance. Id. While acknowledging that challenges generally cannot be filed until a plan is approved, Neighbors contend that a challenge may be filed early where, as here, the equities dictate the filing of an early challenge to a major development project and especially where the developer, Toll Brothers, actively participated in the ordinance enactment process. In support, they rely upon the Commonwealth Court s holding that the necessary precondition to a substantive challenge to a land use ordinance is the existence of a specific use to which the property is sought to be developed. Sharp v. Zoning Hearing Bd. of Twp. of Radnor, 628 A.2d 1223, 1227 (Pa. Cmwlth. 1993). They assert that the sketch plans submitted by Toll Brothers in November 2006, following the October 2006 enactment of the relevant Ordinance No. 1983, satisfy the requirement in Sharp because Toll Brothers thus expressed how it sought to develop the property in the sketch plans. 4 Neighbors further emphasize that the Commonwealth Court relied upon its decision in Belber v. Lower Merion Township, 639 A.2d 1325, (Pa. Cmwlth. 1994), for the proposition that where the submission of a sketch plan is required by a local ordinance, approval of all plans is governed by the zoning ordinance in existence when the sketch plan was filed. Com. Ct. Slip Op. at 7 n.8 (citing 53 P.S (4)). 5 4 For Major Subdivisions and Land Developments, the Subdivision and Land Use Development Ordinances (SALDO) of Upper Makefield Township and Newtown Township distinguish between sketch plans, which are informal and optional, preliminary plans, which are required, and final plans. 5 Section 508(4)(i) of the MPC provides (continued ) Changes in the ordinance shall affect plats as follows [J ] - 4

5 Thus, Neighbors argue that the challenge to Ordinance No did not become moot following its repeal because rights and liabilities vested upon Toll Brothers submission of the sketch plans prior to the repeal of Ordinance No ( continued) (i) From the time an application for approval of a plat, whether preliminary or final, is duly filed as provided in the subdivision and land development ordinance, and while such application is pending approval or disapproval, no change or amendment of the zoning, subdivision or other governing ordinance or plan shall affect the decision on such application adversely to the applicant and the applicant shall be entitled to a decision in accordance with the provisions of the governing ordinances or plans as they stood at the time the application was duly filed. In addition, when a preliminary application has been duly approved, the applicant shall be entitled to final approval in accordance with the terms of the approved preliminary application as hereinafter provided. However, if an application is properly and finally denied, any subsequent application shall be subject to the intervening change in governing regulations. 53 P.S While the Commonwealth Court stated that Toll Brothers filed sketch plans in 2006, Neighbors now also assert that these documents constitute a request under 53 P.S , which provides a procedure for landowners to obtain a preliminary opinion followed by an expedited challenge process. Neighbors further contend that Toll Brothers, in December 2006, received a preliminary opinion that the plan complied with the relevant ordinance. Toll Brothers, however, asserts that there is no evidence in the record of a preliminary plan and even if there were, Holt filed his challenge before the date Neighbors cite for the alleged preliminary approval. Accordingly, Holt s right to appeal could not have arisen as a result of the alleged subsequent approval. See 53 P.S (2) ( The favorable preliminary approval under section and the time therein specified for commencing a proceeding with the board shall run from the time when the second notice thereof has been published. Neither the Commonwealth Court in its discussion of mootness nor the Majority reference these sections or the documents referenced by Neighbors. However, it appears that Toll Brothers is correct that any challenge would have to have been filed (continued ) [J ] - 5

6 In contrast, Toll Brothers observes that that Commonwealth Court in a prior case stated, as in Sharp, that a challenge may be raised based upon the existence of a specific use to which the property is sought to be developed, but further held that, an objector may not bring a substantive validity challenge against an ordinance amendment where the landowner has not applied for a specific use and the zoning officer has not issued a use or occupancy permit for the property. Pheasant Run Civic Org. v. Bd. of Comm'rs of Penn Twp., 430 A.2d 1231, 1233 (Pa. Cmwlth. 1981). Toll Brothers avers that these criteria are not met because it did not file its Preliminary/Final plans until August 2007 and the plans were not approved until October 2007, months after Ordinance No was repealed in June Accordingly, it asserts that Holt s challenge was non-justiciable when he asserted it against Ordinance No in November Instead, Toll Brothers avers that Holt, or Neighbors, should have raised their challenge under Ordinance No. 2007, following the submission of the preliminary plans (rather than the sketch plans). Toll Brothers additionally maintains that that Neighbors fail to indicate where in the record Toll Brothers filed sketch plans under Ordinance No Assuming arguendo that the record would support such finding, Toll Brothers contends that this case is not controlled by the caselaw providing that the ordinance in force at the time of the submission of sketch plans governs where the submission of a sketch plan is required by a local ordinance. Com. Ct. Slip Op. at 7 n.7. Toll Brothers emphasizes that, unlike the ordinances in Belber, the Upper Makefield and Newtown Township Subdivision and Land Use Development Ordinances (SALDO) specifically did not require sketch plans. Upper Makefield SALDO 701(1)(B) (Submission of the sketch ( continued) after the alleged December 2006 preliminary approval, rather than in November 2006, when Holt filed his challenge. [J ] - 6

7 plan shall not be required and shall be considered to be an informal and unofficial stage. ); Newtown SALDO 302(1) ( The Sketch Plan is an optional submission ). Accordingly, Toll Brothers contends that Ordinance No does not control this case, and no rights or liabilities relating to that ordinance vested prior to its repeal. Instead, Toll Brothers argues that Holt and Neighbors should have challenged Ordinance No. 2007, under which Toll Brothers submitted plans which were granted approval in Given the alleged inapplicability of Ordinance No to the proposed use of the property, Toll Brothers maintains that no rights or liabilities, for purposes of this case, vested prior to the repeal of Ordinance No Accordingly, Toll Brothers claims that Holt and the Neighbors challenge under Ordinance No is moot. 7 Despite Neighbors protestations, the Commonwealth Court s decision in Sharp does not provide an equitable exception to the timing of validity challenges under Section of the MPC for cases where the landowner is involved in the enactment of the zoning ordinance. 8 Instead, the holding appears to hinge on the filing of a 7 Even assuming arguendo that Holt had vested rights in his challenge protected by 1 Pa.C.S. 1962, Toll Brothers contends that those rights could not transfer to Neighbors, as mere parties to the hearing, after Holt withdrew his challenge. Brief for Toll Brothers at 15. Instead, Toll Brothers asserts that Neighbors should have filed their own substantive challenge under Ordinance No. 2007, under which land use approvals were granted to Toll Brothers triggering vested rights. 8 Neighbors fail to cite language providing for such an exception. Instead, the Commonwealth Court s analysis in Sharp is as follows [T]he necessary precondition to a substantive challenge to a land use ordinance is the existence of a specific use to which the property is sought to be developed. The record here undeniably demonstrates sufficient facts to satisfy the precondition to a substantive challenge to the ordinance. The University took advantage of the rezoning by presenting (continued ) [J ] - 7

8 preliminary land development plan and its subsequent approval. Sharp did not involve a sketch plan. Even assuming that a sketch plan would trigger Section and that Toll Brothers actually filed a sketch plan, the Neighbors and the Commonwealth Court appear to have erred in applying the ordinance in effect at the time of sketch plans were allegedly filed. Even under the caselaw cited by the Commonwealth Court, the timing of the sketch plan filing is only relevant if the SALDOs required sketch plans. Belber, 639 A.2d at The Newtown and Makefield Township SALDOs, however, do not require the filing of sketch plans. Thus, it appears that the proper validity challenge should have been to Ordinance No under which Toll Brothers filed preliminary development plans and under which land use approvals were granted. While Section 1962 protects rights and liabilities incurred under an ordinance that is repealed and reenacted, the protection is moot if no rights and liabilities existed under the relevant ordinance. Nonetheless, while I would hold that the case is moot because no rights or liabilities vested prior to the repeal of Ordinance No. 1983, I agree with my colleagues that the Commonwealth Court s order should be reversed. Mr. Justice Saylor joins this opinion. ( continued) an application for approval of its preliminary land development plan which was prepared following more than two years of negotiations with neighboring property owners and approved on the same day as adoption of the ordinance. Sharp, 628 A.2d at [J ] - 8