Appeal from the Order of the Court of Common Pleas of Lehigh County in the case of Appeal of Calvin C. and Sonia Geiger v. Zoning Hearing Board of the Township of North Whitehall and North Whitehall Township, No. 82-C-1555.
Michael J. Piosa, Weaver, Mosebach, Piosa & Hixson, P.C., for appellant.
Charles W. Stopp, Steckel and Stopp, for appellees.
President Judge Crumlish, Jr. and Judges Rogers, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by President Judge Crumlish, Jr. Dissenting Opinion by Judge Rogers. Judges Doyle and Barry join in this dissent.
[ 85 Pa. Commw. Page 363]
The North Whitehall Township appeals a Lehigh County Common Pleas Court order which reversed the Zoning Hearing Board's decision and declared the Township Zoning Ordinance unconstitutional.*fn1 We affirm.
The Geigers sought to establish a mobile home on their 40-acre single-family dwelling lot.*fn2 They filed for a special exception pursuant to Section 705.3.3(jj) of the North Whitehall Township Zoning Ordinance, which allows for the placement of a mobile home on an individual lot only for related persons who are dependent on their family by virtue of physical and/or mental disability. The Geigers requested a constitutional challenge to the ordinance be held in abeyance until the Board ruled on the exception. The Board denied the exception.
The Geigers then instituted the constitutional challenge to the ordinance, which excludes any placement of mobile homes on a single residential lot but permits mobile home parks in the municipality.*fn3 The Common
[ 85 Pa. Commw. Page 364]
Pleas Court concluded that the ordinance was unconstitutionally exclusionary.*fn4
This is a case of first impression before this Court. The central issue is whether the zoning ordinance, by restricting the use of mobile homes to mobile home parks, unconstitutionally excludes the placement of mobile homes on individual lots.
A constitutional challenge to a zoning ordinance must overcome a presumption of validity by proving that the ordinance entirely excludes a legitimate use; the burden then shifts to the municipality to show that the exclusion reasonably relates to public health, safety and welfare. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971).
The Township contends this ordinance is not exclusionary and that "mobile home" as a use is a term of art with a generic meaning. This Court has recognized mobile homes (on individual lots) and mobile home parks as separate and distinct land development uses, Meyers v. Board of Supervisors, Lower Makefield Township, 38 Pa. Commonwealth Ct. 578, 583, 394 A.2d 669, 671 (1978), and further held in Environmental Communities of Pennsylvania, Inc. v. North Coventry Township, 49 Pa. Commonwealth Ct. 167, 412 A.2d 650 (1980), that a mobile home park is a planned community involving social, recreational and commercial ...