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NICHOLAS v. TOWNSHIP HARRIS AND ZONING HEARING BOARD TOWNSHIP HARRIS (07/29/77)

decided: July 29, 1977.

NICHOLAS, HEIM & KISSINGER, APPELLANTS
v.
THE TOWNSHIP OF HARRIS AND THE ZONING HEARING BOARD OF THE TOWNSHIP OF HARRIS, APPELLEES



Appeal from the Order of the Court of Common Pleas of Centre County in case of Nicholas, Heim and Kissinger v. The Township of Harris and the Zoning Hearing Board of the Township of Harris, No. 1373 1975-Zoning Appeal.

COUNSEL

Robert K. Kistler, with him Miller, Kistler, Campbell, Mitinger & Beik, for appellants.

Charles J. Weyandt, with him Dunaway, Weyandt, McCormick & Jones, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 31 Pa. Commw. Page 358]

In East Pikeland Township v. Bush Brothers, Inc., 13 Pa. Commonwealth Ct. 578, 319 A.2d 701 (1974), we held that a township zoning regulation which forbade the use of any land in the township for the establishment of a mobile home park was exclusionary and unconstitutional. This holding followed the same ruling earlier made with respect to apartment houses

[ 31 Pa. Commw. Page 359]

    in Girsh Appeal, 437 Pa. 237, 263 A.2d 395 (1970), and townhouse development in Camp Hill Development Co., Inc. v. Borough of Dauphin, 13 Pa. Commonwealth Ct. 519, 319 A.2d 197 (1974). In Township of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975), the Supreme Court held that a township may not avoid the invalidation of a zoning regulation as exclusionary by providing space for the residential use so small as to be clearly only a token. In Waynesborough Corporation v. Easttown Township, 23 Pa. Commonwealth Ct. 137, 350 A.2d 895 (1976), this Court, following Willistown Township v. Chesterdale Farms, Inc., supra, struck down a zoning regulation providing only a small allowance for apartment house use.

The instant case concerns mobile home parks. Before June 1976, Harris Township, Centre County, permitted mobile home park use in its large R-1 Rural Residence zoning district. In August 1973 the appellant partnership, Nicholas, Heim & Kissinger, entered into an agreement to purchase a tract in the R-1 district containing about 140 acres of land. Desiring to develop its land as a mobile home park, the appellant engaged an architect to do the planning. It gave slide presentations of its intended development to the Township Planning Commission and the Board of Supervisors in August and September of 1973. The supervisors told the appellant's representatives at the September meeting that mobile home park regulations were being considered. The appellant's representatives urged that such regulations be promptly adopted and offered their help in the preparation. The record would support a finding that the appellant partnership did not press the Township for subdivision or zoning approvals for its project while the supervisors were assertedly considering mobile home park regulations. In May 1974 members of the appellant partnership

[ 31 Pa. Commw. Page 360]

    obtained an agenda of a supervisors' meeting which included for consideration the adoption of an amendment to the Township zoning ordinance which would totally eliminate mobile home parks as a permitted use in Harris Township. They protested this action, pointing out that the zoning amendment could not be adopted without public notice. The supervisors then advertised their intention to consider, and on June 26, 1974 enacted, an amendment to the zoning ordinance which forbade mobile home park use in the township except in a newly established R-MHP Mobile Home Park district. Since the zoning map was not then amended, no land was set apart for the R-MHP district until August 12, 1974, when the supervisors adopted a second amendment which created as the only R-MHP district a tract containing 10 1/2 acres of land owned by a person who was then conducting a mobile home park on 4 1/2 acres. Hence, the total land area in Harris Township on which mobile home parks were thereafter permitted and which had not previously been used for mobile home park purposes was about six acres.*fn1 There are 10,800 acres of privately owned land in Harris Township. The total new area provided for new mobile home park use was therefore less than 1/20th of 1% of the privately owned land in the township.

The appellant partnership challenged the validity of the ordinance, as amended, pursuant to Section 1004(1)(a) of the ...


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