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ROBERT H. HODGE AND ELIZABETH W. HODGE v. ZONING HEARING BOARD WEST BRADFORD TOWNSHIP (11/29/73)

decided: November 29, 1973.

ROBERT H. HODGE AND ELIZABETH W. HODGE, HIS WIFE, APPELLANTS,
v.
THE ZONING HEARING BOARD OF WEST BRADFORD TOWNSHIP, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of Robert H. Hodge and Elizabeth W. Hodge, his wife, v. Zoning Hearing Board of West Bradford Township, No. 9 November Term, 1971.

COUNSEL

William H. Mitman, for appellants.

Ronald M. Agulnick, with him Agulnick & Talierco Assoc., for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer and Blatt. Judge Rogers did not participate. Opinion by Judge Blatt. Dissenting Opinion by Judge Kramer.

Author: Blatt

[ 11 Pa. Commw. Page 313]

Robert H. and Elizabeth W. Hodge are the owners of a large tract of land located in West Bradford Township (Township). The property is bisected by the Thorndale-Marshallton Road, with approximately 137 acres lying on the east side of the road and approximately 188 acres on the west side of the road. Since acquiring the land in 1957, the Hodges have used it primarily as a commercial orchard, but beginning in 1966, they also began installing mobile homes, eventually establishing a mobile home park known as "Appleville," which included mobile homes located on both sides of the Thorndale-Marshallton Road.

[ 11 Pa. Commw. Page 314]

When the Hodges first began placing mobile homes in Appleville, the Township had no zoning ordinance, but a comprehensive plan was adopted on August 12, 1969, and, on April 14, 1970, following public hearings, a zoning ordinance was also adopted (to be effective April 19, 1970). This ordinance permitted mobile home parks in commercial districts only, and then by special exception. The Hodges' land was zoned partially residential and partially commercial, with part of Appleville being within a residential district. On March 9, 1971, the Township's zoning map was amended so as to include all of Appleville in a commercial district, with the establishment of commercial districts of approximately 20 acres on each side of the road.

Subsequent to the enactment of the April 14, 1970 ordinance, the Hodges sought a special exception from the Zoning Hearing Board (Board) for Appleville. The Board granted an exception, finding that there were then five mobile homes on the west side of the road, all conforming with the ordinance, and fifty-four homes on the east side of the road, some conforming and some nonconforming. On appeal to the Court of Common Pleas of Chester County (No. 60, February Term, 1971), the Board's decision was affirmed, and no appeal was ever taken from that order.

On December 5, 1970, the Hodges filed an application with the Township Zoning Officer for permission to install 300 mobile homes on the west side of the Thorndale-Marshallton Road. The application was refused on the same day on the grounds that it did not conform to the zoning ordinance. The Hodges then appealed to the Board, numerous hearings were held between December 29, 1970 and August 19, 1971, and on October 2, 1971, the Board rejected the application, finding that the proposed additional mobile homes would be placed largely in a residential district where mobile home parks were not permitted. It also found

[ 11 Pa. Commw. Page 315]

    that, despite the Hodges' contentions to the contrary, this proposal did not constitute the expansion of a nonconforming use. The Board held that the park on the west side of the road, where the additional mobile homes were to be placed, was a conforming use, and that, since March 14, 1971, so was the entire park on the east side of the road. Additionally, the Board found that the Hodges had made no substantial outlay of funds on the proposed additional spaces prior to the effective date of the zoning ordinance. The Court of Common Pleas of Chester County, without taking any additional testimony, affirmed the Board's order.

Our scope of review where, as here, the court below took no additional evidence, is limited to a determination of whether or not the Board abused its discretion or committed an error of law. Philadelphia v. Earl Scheib Realty Corp., 8 Pa. Commonwealth Ct. 11, 301 A.2d 423 (1973). The Hodges have raised a number of questions concerning the action of the Board as well as the validity of the ...


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