Appeal from the Order entered October 1, 1984, in the Commonwealth Court of Pennsylvania at No. 3239 C.D. 1982, affirming the Order entered November 23, 1982, in the Court of Common Pleas, Civil Division Law, of Lehigh County, at No. 82-C-1555;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., files a concurring opinion. Hutchinson, J., joins in the majority opinion and files a separate concurring opinion. Papadakos, J., concurs in the result.
This is an appeal from the order of the Commonwealth Court affirming the decision of the Court of Common Pleas of Lehigh County that the Zoning Ordinance of North Whitehall Township unconstitutionally excludes the use of mobile homes on individual lots.
Appellees, Calvin C. and Sonia Geiger, desired to relocate their daughter's transportable home onto their forty acre plot in North Whitehall Township. By operation of the Township's Zoning Ordinance (hereinafter "Ordinance") a home such as the one in question was designated as a "mobile home," and could not be located anywhere in the Township unless authorized as a "special exception" by the Zoning Hearing Board.*fn1
Appellees applied for a special exception under the Ordinance. They also indicated that they might challenge the validity of the Ordinance. After a hearing on the special exception issue, the Zoning Hearing Board ruled that appellees had not established their entitlement to a special exception. Appellees filed a notice of appeal with the Court of Common Pleas of Lehigh County, claiming that the Zoning Hearing Board erred in denying the special exception. They also challenged the validity of the Ordinance. By agreement of the parties and before the court of common pleas heard argument on the matter, the Zoning Hearing Board held a hearing on appellees constitutional challenge to the Ordinance. At this latter hearing, it was stipulated that all of the technical requirements of the Ordinance with respect to setback, lot size, rear yard, etc. imposed in Agricultural/Rural Residential districts for a single family detached dwelling would be met by the appellees' plans to
situate the home on their lot. Mr. Geiger testified as to the details of his plan to permanently locate the home on the lot. The Zoning Hearing Board nonetheless denied appellees' challenge and found the Ordinance constitutional.
On appeal, the Court of Common Pleas of Lehigh County agreed that appellees had not established their entitlement to a special exception. However, the court did find merit in the constitutional challenge, and held that the Township cannot forbid mobile homes on individual lots, a legitimate use, without demonstrating that they are harmful to the health, safety and welfare of the community. Since the Township had made no attempt to so justify its general prohibition of such use, the Ordinance was held unconstitutional and the decision of the North Whitehall Township Zoning Hearing Board was reversed.
The Township's appeal to the Commonwealth Court produced the same result. The court recognized appellees' proposed use as a separate and distinct use from mobile home parks, and held that the Ordinance's token special exception for mobile homes on individual lots was equivalent to a total prohibition of such use. Since the Township failed to prove that the regulation of this legitimate land use bore a relationship to the public health, safety, and welfare, the court held the Ordinance to be unconstitutionally exclusionary.
Upon petition we granted allocatur to review the Commonwealth Court's order.
Our review of the record leads us to agree with the lower courts, that the Zoning Hearing Board erred in denying appellees' proposed land use. However, this conclusion derives from a different analysis than that employed by the lower courts. Those courts perceived the issue as whether a mobile home on an individual lot constituted a separate use which was improperly excluded from Agricultural/Rural Residential districts by the Ordinance. We, on the other hand, view the issue as whether the Township unconstitutionally discriminates against certain types of dwelling units
based on arbitrary and capricious distinctions in the Ordinance.
The North Whitehall Township Zoning Ordinance contains separate definitions for single family detached dwellings and "mobile homes," although both are subcategories of the generic category "dwelling." A single family detached dwelling is defined in pertinent part:
A building, except a mobile home, commonly known as a single family house, designed for and occupied exclusively as a residence having (i) only one dwelling unit from ground to roof, (ii) independent outside access and (iii) open space on all sides.
Ordinance, Appendix A-31-2. A mobile home is defined as follows:
A single family detached dwelling unit manufactured in one complete section, designed for long-term occupancy containing sleeping accommodations, a flush toilet, a bath or shower, kitchen facilities, with plumbing and electrical connections provided for attachment to outside systems; and designed to be transported, after fabrication, on its own wheels, or on flatbed or other trailers; arriving at the site where it is to be occupied as a complete dwelling, which may include major appliances and furniture, and ready for occupancy except for minor and incidental unpacking and assembly operations. For purposes of this Ordinance, modular and sectional dwelling units and travel trailers are not considered as mobile homes.
Ordinance, Appendix A-31-3. The Ordinance also includes the following definition of "sectional" or "modular" house:
A single family detached dwelling unit manufactured in two or more sections designed for permanent occupancy, and transported to a building site in sections which are fastened together and mounted on a permanent foundation ready for occupancy except for minor and incidental unpacking and assembly operation. For purposes of this Ordinance, modular or sectional dwelling units include ...