BPG Properties gets favorable court ruling

"A Commonwealth Court has ruled in favor of BPG Properties Ltd. in its efforts to develop a project called Ellis Preserve on more than 200 acres here off route 252 and 3.

This is the third time a ruling has supported BPG Properties and its effort to construct a mixed-use development on the property. The case highlights the long but determined route some developers take (and the legal hurdles they must overcome) in order to move forward with constructing major projects.

In 2004, BPG Properties bought about 218 acres and set out to have the township pass a planned residential ordinance on the property that would create an overlay district on the land. The overlay would allow BPG Properties to construct a range of different buildings, including retail, office and residential. In the summer of 2009, the ordinance was passed.

Newtown Square East, which is affiliated with local developer Claude de Botton, challenged the ordinance in August 2009 before the zoning hearing board. De Botton argued, among other things, that the ordinance violated the Pennsylvania Municipalities Planning Code requiring the identification of specific uses of buildings within a designated area.

The zoning hearing board denied de Botton’s challenge in May 2010; he appealed to Delaware County Court of Common Pleas.

A year ago, a Common Pleas Court ruled in favor of BPG, saying the appeal of the zoning ordinance was “frivolous” and was being used to delay BPG Properties from developing the project. That result was appealed to Commonwealth Court.

In a ruling handed down Dec. 29, Commonwealth Court ruled that a developer doesn’t have to specify building use and would be “unreasonable” during planning stages and would “hamstring” a developer by forcing it to repeatedly go before a governing body to get new approvals, according to court documents. A developer needs the flexibility to adjust to market conditions and other forces at work, the court said in an opinion written by Judge P. Kevin Brobson.

“His opinion speaks for itself and we argue the contrary,” said John W. Nilon Jr., an attorney with Petrikin Wellman Damico Brown & Petrosa, who represented de Botton. “We thought the statute said when it came to building use, you had to designate building use. He thinks you can have a generic designation.”

Steve Spaeder, president at BPG Development Co., said BPG is pleased with the ruling.
“We’re eager to get started on the project, which has long been delayed,” he said.
Whether this ruling will get appealed to the state Supreme Court hasn’t been determined though it is under consideration, Nilon said."

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