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GERARD V. MCKOWN v. BOARD SUPERVISORS EAST FALLOWFIELD TOWNSHIP (03/09/87)

decided: March 9, 1987.

GERARD V. MCKOWN, APPELLANT
v.
BOARD OF SUPERVISORS OF EAST FALLOWFIELD TOWNSHIP, CHESTER COUNTY, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Gerard V. McKown v. Board of Supervisors of East Fallowfield Township, Chester County, Pennsylvania, No. 84-00354.

COUNSEL

John D. Snyder, with him, William H. Lamb, Lamb, Windle & McErlane, P.C., for appellant.

Thomas R. Wilson, with him, Fronefield Crawford, Jr., Crawford, Wilson and Ryan, P.C., and Daniel J. Kelly, with him, Robert Shaffer, Schuster, Shaffer, Palma & Dougherty, for appellees.

President Judge Crumlish, Jr. and Judges Craig, MacPhail, Doyle, Barry, Colins and Palladino. Opinion by Judge Craig. Dissenting Opinion by Judge Doyle. Judge Colins and Judge Palladino join in this dissent.

Author: Craig

[ 104 Pa. Commw. Page 430]

In this zoning case, a landowner challenged the East Fallowfield Township Zoning Ordinance as exclusionary, alleging that it failed to provide for the township's fair share of mobilehome park development. The township's board of supervisors rejected the landowner's challenge and curative amendment,*fn1 concluding that the existing zoning ordinance, which provided for mobilehome park development, as such, in two-tenths of one percent (.2%) of the township's area, was not exclusionary because mobilehome park development could also be accomplished in the R-3 high density residential district. On appeal, the court of common pleas affirmed on the same grounds, without taking additional evidence. Consistent with our scope of review,*fn2 we must determine

[ 104 Pa. Commw. Page 431]

    whether the board of supervisors erred in concluding that the zoning ordinance was not exclusionary with respect to mobilehome park development.

The landowner also asserts that the board of supervisors erred in permitting the late intervention of the township planning commission as a party in opposition to the landowner's application for curative amendment.

The landowner's 80-acre tract, located along Route 82, a major artery near Coatesville, is presently zoned O-I (Office/Industrial). Hilltop Mobilehome Park, a pre-existing, nonconforming use,*fn3 borders his property on the western side.

Only twenty-four of the township's 10,202 acres of land are specifically zoned for mobilehome park development. However, the board determined that mobilehome park development could also occur in the R-3 high density district under the planned residential development (PRD) provision in the ordinance.

Hence, the key issue is whether the provision in the zoning ordinance which allows for planned residential development necessarily allows for mobilehome park development so that the ordinance, viewed in its entirety, is not exclusionary with respect to mobilehome park development.

First, there is the landowner's attack upon the late intervention of the planning commission.

Planning Commission Intervention

The board of supervisors permitted the planning commission to intervene on the second of four nights of hearings. The ...


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