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EAST PIKELAND TOWNSHIP v. BUSH BROTHERS (05/28/74)

decided: May 28, 1974.

EAST PIKELAND TOWNSHIP, APPELLANT,
v.
BUSH BROTHERS, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in case of In Re: Appeal of Bush Brothers, Inc., No. 209 February Term, 1971.

COUNSEL

James E. McErlane, with him Lamb, Windle & McErlane, for appellant.

William H. Rivoir, Jr., with him John S. Halsted and, of counsel, Gawthrop & Greenwood.

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

Author: Kramer

[ 13 Pa. Commw. Page 579]

This is an appeal filed by East Pikeland Township (Township) from an order dated July 10, 1973, of the Court of Common Pleas of Chester County directing the Township to issue a building permit to Bush Brothers, Inc. (Bush).

[ 13 Pa. Commw. Page 580]

In the interest of a complete understanding of this opinion, it is necessary to delve into some of the historical background as contained in the record. Ogden FitzSimons and his wife are the owners of a tract of land in East Pikeland Township comprising some 64 acres, of which 27 acres are situate in an R-2 zone. The remaining acreage was located in an L1 zone. The zoning ordinance in question became effective January 3, 1970. In April or May of 1970, FitzSimons, who is the president and principal stockholder of Bush, presented a proposal to the Township to construct and establish a mobile home park on the entire 64 acres. After being advised that the L1 district did not permit mobile-home usage, FitzSimons requested the Township to change its zoning ordinance so as to permit mobile-home usage on the entire tract of land. A hearing was held on June 24, 1970, and on August 3, 1970, FitzSimons was advised that his request had been denied.

At about this same time, a petition was circulated under which approximately 1,200 citizens requested the Board of Supervisors of the Township to change the zoning density applicable to mobile home parks in an R-2 district from seven units per acre to two units per acre. As a result of the hearing held June 24, 1970 and the petition of the citizens, the Board of Supervisors of the Township on August 3, 1970 resolved to amend the zoning ordinance by eliminating all references to mobile home parks in any part of the ordinance, and, as found by the court below, such amendment was intended for the purpose of eliminating such land use entirely from the Township. In the interim, FitzSimons filed an application for a variance and a special exception for the property zoned L1 and R-2, respectively. The variance on the portion of the premises located in the L1 district was denied, and FitzSimons withdrew an application for a special exception

[ 13 Pa. Commw. Page 581]

    on the R2 portion on July 13, 1970, for reasons not pertinent to this opinion.

In any event, on August 8, 1970, Bush filed an application for a special exception requesting a permit to construct a mobile home park on the 27 acres of unimproved farmland located in the R-2 district. The accompanying documents, all of which appear to be in accordance with the Township's zoning ordinance, indicate, among other things, that the proposed development would consist of 94 mobile home units on the 27-acre plot. As of the date of this application, the zoning ordinance provided in Section 500.B.1 for multiple family dwellings with a density not exceeding 12 families per acre and mobile home parks with a density not exceeding seven families per acre, when authorized as a special exception.

However, on August 31, 1970, the Board of Supervisors amended the zoning ordinance by deleting from Section 500.B.1 the words "and Mobile Home Park not exceeding seven (7) families per acre" and by deleting the definition of mobile home park. The term "mobile home," however, was retained in the definitional provisions of the zoning ordinance. The Township contends that this amendment resulted in mobile homes becoming subject to the zoning ordinance provisions applicable to every other single-family detached structure, i.e., ...


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