decided: June 9, 1977.
IN RE: APPEAL OF GFM ASSOCIATES FROM DECISION OF BOARD OF COMMISSIONERS OF THE TOWNSHIP OF MT. LEBANON. GFM ASSOCIATES, APPELLANT
Appeal from the Order of the Court of Common Pleas of Allegheny County in case of In Re: Appeal of GFM Associates from Decision of Board of Commissioners of the Township of Mt. Lebanon, Nos. SA 147 of 1974 and SA 148 of 1974.
Guy L. Warman, with him John Michael Studeny, and Metz, Cook, Hanna & Kelly, for appellants.
J. W. Montgomery, III, with him Edwin L. Klett, and Eckert, Seamans, Cherin & Mellott, for appellee.
Judges Kramer, Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.
[ 30 Pa. Commw. Page 477]
The appellant, GFM Associates (GFM), desiring to establish a mobile home park on land in Mt. Lebanon Township, Allegheny County, submitted a preliminary development plan for the approval of the township commissioners pursuant to Section 508 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10508.*fn1 A letter accompanying the submission written by GFM's counsel told the commissioners that the plan did not comply with the township's subdivision ordinance but that none of the requirements of the subdivision ordinance applied to mobile home parks because the ordinance contains no separate provisions regulating mobile home parks.*fn2 The writers further declared that provisions of the township zoning ordinance which prevent the development as proposed were unconstitutional and void. The township commissioners reviewed the plan as required by Section 508 and denied approval for many reasons sounding in its subdivision and zoning ordinances. GFM filed two appeals*fn3 from the township commissioners' orders, the identical operative provisions of which are as follows:
[ 30 Pa. Commw. Page 478]
(a) At the time the application was filed, Appellee did not have any Ordinance which established any standards or requirements or imposed any regulations for mobilehome parks.
(c) Reasonable regulations for the development of land as a mobilehome park with private driveways, private utility lines and private appurtenances to be used in common by tenants so long as the land is used for a mobilehome park have to be substantially different from regulations applicable to a permanent subdivision of land for the sale of lots which involves dedication of streets and easements in perpetuity.
(d) Section 501 of Article V of the Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10501, expressly provides that:
'Provisions regulating mobilehome parks shall be set forth in separate and distinct articles of any subdivision and land development ordinance adopted pursuant to Article V. . . .'
(e) Under authority of the Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10501 et seq., Appellee adopted its 'Subdivision Ordinance' No. 2524, approved October 9, 1972, but prior to the date Appellant filed its application for approval of plans Appellee had failed to set forth any provisions regulating mobilehome parks either in separate and distinct Articles or otherwise.
(f) By definitions and by unreasonable provisions imposing restrictions which cannot possibly be met contained in its Zoning Ordinance No. 2519, adopted June 26, 1972, Appellee has attempted to completely exclude the development of any mobilehome park or the use
[ 30 Pa. Commw. Page 479]
of any mobile home within its boundaries, which discriminates against potential residents who can only afford mobilehome type housing.
(h) After Appellant filed its application, Appellee amended its Zoning Ordinance No. 2519 to expressly mention the terms 'mobile homes' and 'mobile home parks' for the first time.
(i) Appellee's Zoning Ordinance No. 2519, approved June 26, 1972, in its form as of the date the application was filed and as amended, is unauthorized by any enabling legislation, invalid, discriminatory, unconstitutional and void.
(k) It is impossible to develop a mobilehome park in Mt. Lebanon Township under its Ordinances.
The township, after an abortive effort to file preliminary objections, filed a motion to quash which the court below granted. GFM has appealed and we affirm.
As the quoted portions of GFM's court appeals reveal, its complaint is not that the township commissioners' decision to deny approval of its plan is not authorized by or is contrary to the provisions of the subdivision or zoning ordinances but that the subdivision and zoning ordinances are unconstitutional and hence substantively invalid. The exclusive procedural devices available for challenging the validity of township ordinances on substantive grounds are those provided by Section 1004 of the MPC, 53 P.S. § 11004, which requires a landowner to submit the challenge either to the Zoning Hearing Board for a report or to the governing body with a request for a curative amendment. It is too clear for serious argument to the contrary that GFM never believed that its development
[ 30 Pa. Commw. Page 480]
plan could proceed in accordance with the township's ordinance, that it does not complain of the commissioners' decision on this ground, and that its appeals below are not therefore to be considered as having been taken pursuant to Section 1006, 53 P.S. § 11006 of the MPC.*fn4
We pointed out in Board of Commissioners of McCandless Township v. Beho Development Co., 16 Pa. Commonwealth Ct. 448, 332 A.2d 848 (1975), that a purpose of Section 1004 was to give the municipality notice when the application for a new use is submitted and before any record is made at the municipal level that the case presents a challenge to the substantive validity of its ordinances, and is not merely a request for rezoning or an application for variance or other form of relief. This, we may assume, was intended as a response to the holding of Eller v. Board of Adjustment, 414 Pa. 1, 198 A.2d 863 (1964), that under the statutes then existing the landowner might ask the municipal zoning authorities for a variance, advance only his entitlement to a variance before the Zoning Hearing Board, and on appeal raise for the first time a challenge to the validity of the ordinance on substantive grounds.
And Now, this 9th day of June, 1977, the order of the Court of Common Pleas of Allegheny County made August 4, 1975 is affirmed.