Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Edward B. Meyers and Irwin B. Robbins, t/a Best Homes, from the Denial of Curative Amendment Request by the Board of Supervisors of Lower Makefield Township, No. 75-10998-04.
Franklin H. Spitzer, with him Richard P. McBride and Power, Bowen & Valimont, for appellants.
William J. Carlin, with him John P. Koopman, and Begley, Carlin, Mandio, Kelton & Popkin, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and MacPhail. Judges Mencer and Craig did not participate. Opinion by Judge Wilkinson, Jr. Concurring and Dissenting Opinion by Judge Rogers. Judge DiSalle joins in this Concurring and Dissenting Opinion.
[ 38 Pa. Commw. Page 579]
The landowners in this appeal, Edward B. Meyers and Irwin B. Robbins (appellants), challenge the constitutionality of the zoning ordinance of Lower Makefield
[ 38 Pa. Commw. Page 580]
Township (Township), alleging the ordinance excludes mobile home parks as a permitted use. The Township Board of Supervisors (Board) rejected this contention and their action was sustained by the Court of Common Pleas of Bucks County. We reverse and remand.
Appellants are the owners of an 80-acre tract of land in the Township presently located in an R-1 District which limits residential development to single family dwellings on one acre lots. Appellants filed a substantive challenge to the validity of the existing ordinance and submitted a curative amendment and a proposed development plan for the 80-acre tract that would have permitted a 480-unit mobile home park on the tract. The plan and ordinance were submitted to the Bucks County Planning Commission and the Township Planning Commission, both of which rejected appellants' plan.*fn1 Subsequently five hearings were held before the Board. Included in appellants' evidence before the Board was the testimony of a land planner, a realtor, civil engineer and architect.
Appellants premised their attack on two sections of the zoning ordinance: Section 101 which defined a mobile home park as "a parcel of land under single ownership which has been planned and improved for the placement of mobile homes for a nontransient use, consisting of two or more mobile home lots"; and Section 1011 which provides, "No lot may be used as a junkyard, automobile wrecking yard, commercial
[ 38 Pa. Commw. Page 581]
piggery, drive-in movie or drive-in theatre [or]mobile home park. . . ." The proposed curative amendment would have created a mobile home park district which would have permitted mobile home lots as well as provisions for the sale of mobile homes and fixtures as an "accessory use" and for commercial areas not to exceed five per cent of the gross site to serve residents of the district where the mobile home park site is in excess of 50 acres. In addition, separate density (8 units per acre) and set back requirements, distinct from those for other residential districts would have been established.
The Board denied the application for a curative amendment and rendered findings of fact and conclusions of law. The Board found, inter alia, that: "The suggested ordinance in addition to allowing for a mobile home park provides for a variety of commercial uses including the sale and repair of mobile home units," and "The Lower Makefield Zoning Ordinance would permit the assembling of mobile homes in a park like area for residential purposes provided they met all the minimum requirements of density, lot size, and set back of the District in which they are proposed to be located." With respect to these findings, the Board concluded that appellants failed to meet their burden in showing that the ordinance was exclusionary with respect to mobile home parks and that even assuming the ...