decided: March 1, 1979.
JOSEPH J. ZAJAC, SR., APPELLANT
THE ZONING HEARING BOARD OF MIFFLIN TOWNSHIP, COLUMBIA COUNTY, PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of the 26th Judicial District, Columbia County Branch, in case of Joseph J. Zajac, Sr. v. The Zoning Hearing Board of Mifflin Township, Columbia County, Pennsylvania, No. 76-1978.
Frank C. Baker, for appellant.
Franklin E. Kepner, Jr., for appellee.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 41 Pa. Commw. Page 8]
This zoning appeal involves a special exception application for a mobilehome park in an R-A Residential Agricultural District, denied by the Zoning Hearing Board of Mifflin Township (Board).
Appellant Joseph J. Zajac, Sr. (applicant) appealed the denial to the Common Pleas Court of Columbia County, which remanded the matter for a proper hearing, after which the Board again denied the special exception.
[ 41 Pa. Commw. Page 9]
Although all parties now agree that this application for a 36-unit mobilehome court is in full compliance with all of the express special exception requirements for mobilehome courts in Sections 514 and 562 of the Mifflin Township Zoning Ordinance (ordinance),*fn1 the Board, in addition to basing its denial
[ 41 Pa. Commw. Page 10]
on considerations of density, accessibility and alleged pollution, also found that the mobilehome court would contravene the ordinance purposes, concluding:
The proposed use is certainly not compatible with the purpose of such a district [Residential-Agricultural], i.e. the stabilzation of agriculture as an on-going economic activity'. . . .
The court below, without taking any additional testimony, affirmed the Board. Our scope of review is therefore limited to a determination of whether or not the zoning hearing board abused its discretion or committed error of law. Gillies Corporation Appeal, 36 Pa. Commonwealth Ct. 489, 387 A.2d 1358 (1978).
Therefore the issue presented is: Where the zoning ordinance enacted by the governing body states that a mobilehome court is allowable in a residential-agricultural district by way of special exception, and a mobilehome court application complies fully with the ordinance's specifications, including density requirements, has the zoning hearing board abused its discretion by denying the application for reasons related to ordinance purposes and density as well as alleged pollution and accessibility, upon the record before us?
Total exclusion of mobilehome courts from a municipality would be invalid. McKee v. Township of Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976). However, to avoid being exclusionary, an ordinance need not allow a use absolutely, as a permitted use, but may allow it conditionally, by way of special exception. Kaiserman v. Springfield Township, 22 Pa. Commonwealth Ct. 287, 348 A.2d 467 (1975).
However, as the township's brief recognizes, where the allowance is conditioned by way of special exception, denials must be examined for assurance that
[ 41 Pa. Commw. Page 11]
they do not mean that the special exception provision is a mere token.*fn2
Moreover, the well-settled principle is that, where a special exception application complies with the stated ordinance requirements, those objecting have the burden to establish that approval would be detrimental to public health, safety or general welfare. Copeechan Fish and Game Club v. Zoning Hearing Board, 32 Pa. Commonwealth Ct. 415, 378 A.2d 1303 (1977).
Standing alone, the Board's conclusion that this proposed mobilehome court is not compatible with the R-A district purpose -- stabilization of agriculture -- sounds as if the Board disagrees with the governing body's conclusion that a mobilehome court can be compatible with the stabilization of agriculture in the district, as evidenced by the ordinance provision for such a use in that district. Of course, it is not the province of the Board to disagree with the ordinance policy and, in effect, amend it by denial.*fn3
However, to give the Board all benefit of doubt, we view the Board's conclusion, as did the lower court, to mean just that this particular proposal, in this
[ 41 Pa. Commw. Page 12]
particular location, would not be compatible with the agriculture stabilization purpose of the district. The Board did determine "that the proposed use should not be granted a special exception so to be constructed in a Residential-Agricultural district . . . . ," but "[f]or all the above-listed facts and reasons . . . . ," referring to the matters of density, accessibility and alleged pollution, to which we now turn.
The density concerns were that the proposed 36-unit mobile home court would (1) produce congestion, (2) overrburden the roads, and (3) crowd the elementary schools -- all considerations resting solely upon population density or units per acre.
The only support in the record for these density concerns consists of the general expression of fears by objecting neighbors.*fn4 Although expert testimony is not always required with respect to density and congestion claims, lay objections, to be substantial, must have some specificity. Township of Abington v. Rocks Associates, Inc., 11 Pa. Commonwealth Ct. 95, 312 A.2d 98 (1973).
The force of density concerns is weakened by the fact that the ordinance itself, in Section 514 B, expresses the proper density as 6,000 square feet for each mobilehome in the R-A district, the classification which the governing body chose to apply to the location in question; and the application complies with that requirement.
The Board expresses its school-crowding concern as stemming from the idea that the mobilehome court would be "occupied by families of child-bearing age," overburdening township services "without providing
[ 41 Pa. Commw. Page 13]
the necessary permanent tax base. . . ." The view that mobilehomes involve more child-bearing than single-family dwellings, an unproved assumption, suggests a stereotyping of mobilehome dwellings, based upon an age-group distinction which the record in no way relates to the police power purposes of zoning. Moreover, tax-base concerns (for which the record here contains no support) cannot be decisive in a zoning case. Putney v. Township of Abington, 176 Pa. Superior Ct. 463, 108 A.2d 134 (1954).
Nor does the record provide any basis for concerns about accessibility, reasonably defined on pp. 73 and 74 of the Ordinance as involving access to public roads, off-street parking and interior circulation. The record contains nothing to raise a question as to public road access or off-street parking. The interior circulation will apparently involve automobiles backing out of parking stalls, before proceeding along the internal driveway. With respect to that matter of design, the only record evidence is the testimony of the planning commission chairman that his commission approved the plan.
As to the alleged land, water and noise pollution, the township's brief does not direct us to any supporting evidence, and we find none.
Therefore, we find no evidence of probative value to support the Board's findings and conclusion that the objectors met their burden. We therefore must reverse the decision of the court below, sustain the appeal from the decision of the zoning hearing board and remand the case, with the direction that the application be granted in accordance with the pertinent provisions of the ordinance.
And Now, this 1st day of March, 1979, the decision of the Court of Common Pleas of the 26th Judicial
[ 41 Pa. Commw. Page 14]
District, Columbia County, dated March 29, 1978, at Docket No. 76-1978, is reversed, the appeal from the Zoning Hearing Board of Mifflin Township is sustained, and the case is remanded with the direction that the application be approved as to zoning subject to the pertinent provisions of the Zoning Ordinance of Mifflin Township.
Reversed and remanded.