Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Arthur Shore from the decision of the Board of Supervisors of Solebury Township denying request for Curative Amendment, No. 81-08960-14-5.
Richard P. McBride, with him, Edward F. Murphy, McBride and Murphy, for appellant.
Stephen B. Harris, Harris and Harris, for appellee.
President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Barry, Colins and Palladino. Opinion by Judge Craig.
This zoning appeal involves the Solebury Township Zoning Ordinance's total exclusion of mobilehome
parks. In a curative amendment proceeding,*fn1 the township's board of supervisors rejected landowner Arthur Shore's constitutional attack on the ordinance. From an affirmance by the Court of Common Pleas of Bucks County, the landowner appealed to this court.
The central question is whether a total exclusion of mobilehome parks, a legitimate residential use category, is unconstitutional, as this court has consistently held in a number of decisions,*fn2 or instead is governed by the validity analysis described in Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), which the Supreme Court of Pennsylvania had applied only to less-than-total housing exclusions until that court's holding in Appeal of M.A. Kravitz Co., Inc. v. Board of Supervisors of Wrightstown Township, 501 Pa. 200, 460 A.2d 1075 (1983), which sustained a total exclusion of townhouses,*fn3 but without a majority opinion.
After reviewing the briefs, record, and argument in the light of those Supreme Court decisions and the
post- Kravitz opinion in Fernley v. Board of Supervisors of Schuylkill Township, 76 Pa. Commonwealth Ct. 409, 464 A.2d 587 (1983) (upholding a total exclusion of multiple dwellings under the Surrick analysis), this court, mindful of the scope of review where the trial court has taken no additional testimony,*fn4 affirms the order of the Bucks County Court of Common Pleas, adopting the able and incisive opinion written by Judge Biester for a four-judge court en banc of the common pleas court, Appeal of Arthur Shore, Pa. D. & C. 3d (filed December 5, 1983).
Judge Biester's opinion correctly concluded at the outset that the Solebury Township Zoning Ordinance, as a matter of law, does exclude mobilehome parks totally by failing to list them as permitted uses anywhere, and ...