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decided: November 30, 1979.


Appeal from the Order of the Court of Common Pleas of Bucks County in case of Colonial Park for Mobile Homes, Inc. v. New Britain Township, No. 77-1580-04-5.


Peter N. Harrison, for appellant.

Albert L. Blackman, Jr., with him George M. Bush, for appellee.

Judges Crumlish, Jr., Rogers and Craig, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt, DiSalle, Craig and MacPhail. Opinion by Judge Rogers. Dissenting Opinion by Judge Craig. Judges Crumlish, Jr. and Blatt join in this dissent. Dissenting Opinion by Judge Mencer. Judge Craig joins in this dissent.

Author: Rogers

[ 47 Pa. Commw. Page 461]

Colonial Park for Mobile Homes, Inc. has appealed from a decision of the Bucks County Court of Common Pleas which upheld the constitutionality of the New Britain Township Zoning Ordinance of 1974 and refused Colonial Park's request for curative amendment. We affirm.

In 1972, Colonial Park acquired a 15.4 acre tract of land in New Britain Township. At the time of Colonial Park's acquisition of the tract a mobile home park accommodating 36 mobile homes was located on about one-fourth of its land area. Colonial Park continued to operate the park. In 1974, the Township enacted a zoning ordinance which placed the property in a district called "Holding Zone -- 1".

On February 12, 1975, Colonial Park submitted a request for curative amendment to the Board of Supervisors of New Britain Township pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004 with a challenge to the substantive validity of the Township Zoning Ordinance. Colonial Park contended that the ordinance was unconstitutionally exclusionary because it makes no provision for mobile home parks within the township. Colonial

[ 47 Pa. Commw. Page 462]

Park's suggested cure was a proposed ordinance which would place its tract in a proposed new Mobile Home Park District where such parks would be permitted. The development plan which Colonial Park submitted with its curative amendment proposed development of its tract at a density of five and a half dwelling units per acre. After five nights of hearings, the Board of Supervisors rejected the request for curative amendment. The Court of Common Pleas of Bucks County, to which Colonial Park appealed the Supervisors' action, affirmed the decision of the Board of Supervisors.

Mobile home parks are a legitimate land use, East Pikeland Township v. Bush Brothers, Inc., 13 Pa. Commonwealth Ct. 578, 319 A.2d 701 (1974), and may not be wholly barred by zoning regulations without proof that the use of any land in the municipality for the purpose would be injurious to public health, safety or welfare. McKee v. Township of Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976). We agree with the Bucks County Common Pleas Court that the zoning ordinance in this case did not prohibit mobile home park use in all of New Britain Township.

The respective positions of the parties are unusual. In the usual case of this class, the landowner desiring to use his land for a residential purpose forbidden by zoning regulations in the district in which the land is located contends that the regulations are unlawful because they forbid the use not only on his land but throughout the municipality; the municipality counters that, although its zoning regulations forbid the use in question on the landowner's property, they allow it in other zoning districts with the result that there is no unlawful total exclusion. See, for example, Berger v. Board of Supervisors of Whitpain Township, 31 Pa. Commonwealth Ct. 386, 376 A.2d 296 (1977). Here, the municipality contends that under

[ 47 Pa. Commw. Page 463]

    its zoning ordinance the use which the landowner says is totally excluded, may be established anywhere within its boundaries, including, especially, that part of the landowner's property not already devoted to the use. The use is permitted, the township declares, as a Planned Residential Development (PRD) upon application and approval. Somewhat parenthetically, we note that it is undisputed that under New Britain's zoning regulations Colonial Park may expand its present operation by 50%, which raises the interesting question, which we are not here required to decide, of whether a landowner can successfully maintain that it is the victim of unconstitutional exclusion by the terms of an ordinance where the constitution itself (and here additionally, the zoning ordinance) gives it the right to expand its existing use.

Rather than apply for approval of the establishment of an enlarged or new mobile home park as a PRD, as the township says is available to it, Colonial Park insists that the township has misconstrued its own ordinance and that the township's zoning regulations forbid mobile home parks. The understandable reason for this unwillingness is that if the ordinance is struck down Colonial Park proposes to establish a mobile home park with a density of 5.5 units per acre -- a more favorable result than would be obtained under the ordinance, which provides for a maximum density of 2.3 units per acre. This is, therefore, a lawyer's case in which we are required to examine the zoning ordinance to see whether it excludes mobile home parks throughout New Britain Township, as Colonial Park says, or whether mobile home parks may be established under the PRD provisions anywhere in the township, as New Britain insists and the court below decided.

There is a presumption that the ordinance is valid so that Colonial Park had the burden of proving its

[ 47 Pa. Commw. Page 464]

    invalidity. Appeal of Gro, 440 Pa. 552, 269 A.2d 876 (1970).

The ordinance provides the following definitions:

Section 248 Trailer

Any vehicle designed, intended, arranged or used as a dwelling, whether arranged to stand on wheels or rigid supports. For the purpose of this Ordinance any inhabited trailer or mobile home shall be a single-family dwelling and as such, be subject to all applicable regulations in this or other Township Ordinances.

Section 249 Trailer Park

More than one trailer on a single lot.

It is true that the ordinance does not explicitly declare that the use of land for trailer parks (or mobile home parks) is permitted; on the other hand, neither does it explicitly prohibit such use. One may wonder why trailer parks are defined if it was intended that they be excluded. The township contends that exclusion was not intended and that inclusion is provided by Article VI, Planned Residential District of its zoning ordinance.

The two opening sections of Article VI read:

Section 600 Purpose

It is the purpose of this Article to encourage and promote flexibility and ingenuity in the layout and design of new developments, enabling the developer to provide a variety of housing types, appropriate non-residential uses, while using open space areas to protect the environment and provide recreation on parcels of five (5) acres or more, through the creation of a Planned Residential Development District by the New Britain Township Supervisors. To meet these ends, procedures combining the administration of zoning and subdivision approval have been developed for use in PRD's.

[ 47 Pa. Commw. Page 465]

Section 601 Establishment of Districts

Any landowner may request the establishment of a Planned Residential District on a tract containing five (5) or more acres of land, consisting of one or more contiguous parcels of land under one ownership. Such a district may be established by the New Britain Township Board of Supervisors in accordance with sections of this Article upon approval of a tentative plan. [sic]

Paraphrased, these provisions say that the purpose of PRD is to provide a variety of housing types, that PRDs may be established on any parcel of five acres, and that such district may be established by the Board of Supervisors upon tentative approval of a plan for a PRD.*fn1

Sections 603 through 608 of Article VI set out specific standards concerning density, open spaces, roads, recreation facilities, ownership of units*fn2 and other particular features required of PRDs. Sections 608, 609, 610, 611 and 612 of Article VI of the ordinance are materially identical, respectively, to Sections 707, 708, 709, 710 and 711 of the Pennsylvania Municipalities Planning Code, 53 P.S. §§ 10707

[ 47 Pa. Commw. Page 466]

    through 10711, relating to applications for tentative approval, public hearings of such applications, findings thereon, the status of the plan after ...

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