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APPEAL HUME VILLAGE (05/21/80)

decided: May 21, 1980.

IN RE: APPEAL OF HUME VILLAGE, A LIMITED PARTNERSHIP. TOWNSHIP OF MIDDLETOWN, BUCKS COUNTY, PENNSYLVANIA, APPELLANT


Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Hume Village, A Limited Partnership, No. 72-4103-10-6.

COUNSEL

Guy T. Matthews, for appellant.

Richard P. McBride, with him, Herbert K. Sudfeld, Jr., for appellee.

President Judge Crumlish, and Judges Wilkinson, Jr., Mencer, Rogers, Craig, MacPhail and Williams, Jr. Judge Blatt did not participate. Opinion by Judge Rogers. Concurring Opinion by Judge Mencer. Judge Williams joins in this concurring opinion.

Author: Rogers

[ 51 Pa. Commw. Page 466]

Middletown Township has appealed from an order of the Court of Common Pleas of Bucks County reversing the decision of the township's Zoning Hearing Board which denied Hume Village's application for a validity variance.

In January 1972, a time before the Pennsylvania Municipalities Planning Code provided for curative amendment applications, Hume Village applied to the Zoning Hearing Board for a validity variance to construct a mobile home park consisting of 188 units on

[ 51 Pa. Commw. Page 467]

    about thirty-eight (38) acres of land. The land was in an area zoned R-1 Residential. Hume Village alleged in its application that the township's zoning ordinance unconstitutionally excluded mobile home parks from the township. The Board denied the application, concluding that while the township's zoning ordinance did not specifically name mobile home park as a permitted use, mobile home parks could be lawfully constructed in an R-1 district if they met the zoning requirements of the ordinance applicable to residences generally. The Board's decision, however, made no mention of Article X, Section 1011B of the township's zoning ordinance, stating that "[n]o lot shall be used as a trailer camp."

Hume Village appealed the Board's decision to the court below, which, although agreeing with the Board that a mobile home park might be constructed in the R-1 district if applicable requirements were met, concluded that Section 1011B was an explicit prohibition of mobile home park use throughout the township, unconstitutional and therefore of no effect. The court remanded the case to the Board with leave to impose reasonable conditions upon the construction of Hume Village's mobile home park.

Where no additional testimony is taken by the lower court, our scope of review is limited to a determination of whether the Zoning Hearing Board abused its discretion or committed an error of law. Lewis v. Lower Gwynedd Township Zoning Hearing Board, 24 Pa. Commonwealth Ct. 574, 357 A.2d 725 (1976).

The nub of the case is whether or not Section 1011B, by prohibiting the use of any lot as a trailer camp, unconstitutionally excludes mobile home parks from the township. We agree with the court below that it does. Article I, Section 103.21 of the township's zoning ordinance defines a ...


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