The opinion
Dissenting Opinion by
Judge Craig:
I must respectfully dissent because the majority decision denies the existence of a vested right where *363 a developer has lawfully built $3 million worth of improvements in reliance upon the official land development approval of the condominium project granted by the township. The majority decision seems to put form above substance in insisting that there must be “specific unit building permits ’ ’ also.
As is pointed out below, the result of the township’s later action and our majority decision will be to more than quadruple the improvement cost of each housing unit — an inexplicable contribution to today’s grinding inflation of the price of a place to dwell.
The situation here is distinguishable from that in York Township Zoning Board of Adjustment v. Brown, 407 Pa. 649 , 182 A.2d 706 (1962) and Friendship Builders, Inc. v. West Brandywine Township Zoning Board, 1 Pa. Commonwealth Ct. 25 , 271 A.2d 511 (1970), which, as the majority opinion correctly states, held that mere plan approval under subdivision regulations does not establish a vested right or nonconforming use.
Much more than mere subdivision approval has occurred in this case. The laying out of lots is not involved here at all. The millions of dollars spent on construction has been under a land development approval.
A “land development,” as defined under Section 107(11) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31,1968, P.L. 805, as amended, 53 P.S. §10107(11), includes “the improvement of one lot. . . for any purpose involving . . . the . . . allocation of land . . . for the purpose of . . . condominiums.” (Emphasis supplied.)
Although the condominium form of ownership is not itself a proper subject of zoning prohibition, Kaufman & Broad, Inc. v. West Whiteland Supervisors, 20 Pa. Commonwealth Ct. 116 , 340 A.2d 909 (1975), con *364 dominium projects are recognized as falling within land development ordinances under Article Y of the MPC 53 P.S. §§10501-10515. The unified nature of the whole project is graphically illustrated by the fact that the approved plan shows no outlines of separate lots. In a practical sense, the original approval authorized the condominium project as proposed.
Also distinguishable is Dunlap Appeal, 370 Pa. 31 , 87 A.2d 299 (1952) in which the Supreme Court held that “the mere laying of pipes and sewers” 16 years before enactment of an initial zoning ordinance did not bring the plan “so near completion that the lots . . . constituted a nonconforming use in existence prior to the ordinance.” 370 Pa. at 34 , 87 A.2d at 301 . (Emphasis in original.) In that case, because no zoning or subdivision regulations were in effect when the improvements were made, there had been no official cognizance or approval of the overall project, as there was here.
As the court below pointed out, with roads, storm sewers, sanitary sewers and water lines virtually completely installed, the total expenditure of $3 million means that the expenditure for common facilities has exceeded $5,000 per unit for each of the 557 units originally approved. Arithmetic indicates further that such expenditure, if it is allocated only among the 131 units now constructed, would climb to a figure of $22,-900 for each unit.
More closely than any decision available from our courts, the situation here appears to fit that in Telimar Homes, Inc. v. Miller, 14 App. Div. 2d 586, 218 N.Y.S. 2d 175 (1961) cited and quoted with approval in Cheltenham Township Appeal, 413 Pa. 379, 392-93 , 196 A.2d 363, 369-70 (1964) as follows:
The concept that development of a large tract, even though by stages, may be considered *365 as a whole, if so planned, is illustrated in Telimar Homes, Inc. v. Miller, 14 App. Div. 2d 586, 218 N.Y.S. 2d 175 (1961). The builder there acquired land for residential development pursuant to a single overall plan for the entire tract. To facilitate financing, construction, and orderly development, it was divided into four sections. After approval of the first section, extensive planning and construction was undertaken. However, after approval of the second quarter, the ordinance was amended, and approval of sections three and four was refused. The court said ( 218 N.Y.S. 2d at 177 ):
‘It is clear from this record that the water system, roads, drainage system, model house construction and advertising were laid out and designed for the benefit of all four sections developed as a single, overall tract; that they would have been laid out and treated on an entirely different basis if the development of each section were to be separate; and that, prior to the zoning amendment, substantial construction had been commenced and substantial expenditures had been made in partial development of sections three and four, as well as sections one and two. Hence, plaintiff acquired a vested right to a nonconforming use as to the entire tract----[Citing cases].’
I recognize that the precise holding of Cheltenham Township Appeal was that an integrated, comprehensive development of a large tract of land will be treated as a single undertaking so that objecting neighbors are required to appeal the initial building permit and not later ones. I also recognize that it is another matter to conclude, as did the New York court, that the lawful establishment of the infrastructure of community facilities for such a comprehensive devel *366 opment gives rise to a vested property right sufficient to outweigh the municipality’s public interest in amending its density regulations.
Clearly, the property right in such an investment can be considered to be vested as against public police power concerns only when its substantiality and its circumstances are such that the density reduction would have the effect of confiscating, or preventing the recovery of, all or most of the value of the common improvements which have been constructed and dedicated to the comprehensive project.
Our lower court decision in Kromez, Inc. v. Upper Southampton Township Zoning Hearing Board, 28 Bucks 193 (1976), cited by the majority, nevertheless soundly reflected the proposition that, if there is a taking of a substantial portion of the lawful investment in common facilities by a police power action not reasonably requiring such a taking without compensation, then the associated development right should be considered “vested” as against the regulatory impact.
Inasmuch as the Court of Common Pleas here expressly did not consider the constitutional question of whether there would be confiscation of the landowner’s investment in the common improvements unless there is deemed to be a vested right to complete the development originally approved, which question was properly before it but did not require disposition in view of the conclusion then reached, we should remand the case to that court to make that determination, with the taking of additional testimony if necessary. It is very likely that the sheer cost, extent and designed allocation of the common improvements thus far made in contemplation of 557 units, as indicated above, could be so great as not to be substantially recoverable or useable in the face of the subsequent amendments.