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BOROUGH MALVERN PLANNING COMMISSION BOROUGH MALVERN ELIZABETH BURKE FRANK ORTNER AND WILLIAM HUFFMAN v. KENNETH O. JACKSON (08/05/87)

decided: August 5, 1987.

BOROUGH OF MALVERN; PLANNING COMMISSION OF THE BOROUGH OF MALVERN; ELIZABETH BURKE; FRANK ORTNER AND WILLIAM HUFFMAN, APPELLANTS
v.
KENNETH O. JACKSON, APPELLEE



Appeal from the Order of the Court of Common Pleas of Chester County in the case of Kenneth O. Jackson v. Zoning Hearing Board of Malvern Borough, No. 85-07104.

COUNSEL

John C. Snyder, Lentz, Cantor, Kilgore & Massey, Ltd., and W. Robert Landis, with him, Douglas A. Lee, W. Robert Landis Associates, P.C., for appellants.

Lenard L. Wolffe, Pechner, Dorfman, Wolffe, Rounick & Cabot, with him, Alan B. Portnoff, Portnoff & Houpt, Ltd., attorneys for appellee.

Judges MacPhail and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 108 Pa. Commw. Page 249]

The Borough of Malvern, the Planning Commission of the Borough of Malvern, and several landowners (Appellants) appeal an order of the Chester County Common Pleas Court reversing a decision of the Malvern Zoning Hearing Board (Board). We affirm the Common Pleas Court.

On September 19, 1984, Kenneth O. Jackson (Appellee) filed a challenge to the Borough's zoning ordinance pursuant to Sections 910 and 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยงยง 10910 and 11004. Appellee claimed that the zoning ordinance was invalid because it did not permit mobile home parks anywhere in the Borough. The Board dismissed the challenge and the Court of Common Pleas reversed the Board and ordered that the Borough issue the requisite permits for construction of the proposed mobile home park unless Appellants could show that the proposed park is incompatible with the site or reasonable, pre-existing

[ 108 Pa. Commw. Page 250]

    health and safety codes and regulations relating to such proposals. It is this order that Appellants have appealed to this Court.

In this case, the Court of Common Pleas took no additional evidence. Therefore, our scope of review is restricted to determining whether the Board committed an error of law or an abuse of discretion. Williams v. Salem Township, 92 Pa. Commonwealth Ct. 634, 500 A.2d 933 (1985). We may conclude that the Board abused its discretion only if its findings are not supported by substantial evidence. Valley View Civic Ass'n v. Zoning Board of Adjustment, 501 Pa. 550, 462 A.2d 637 (1983).

Appellants argue that the Board was correct in denying Appellee's challenge to the ordinance, even though it is conceded that the ordinance does not provide for mobile home parks as a separate use, because Appellee did not put forth evidence that the Borough is in the path of development and that it is excluding population growth within its boundaries. In order to resolve this issue, we must first review the rocky path that the law concerning the exclusion of mobile home parks has taken in this Commonwealth.

[ 108 Pa. Commw. Page 251]

Originally, in a long line of cases, this Court held that a total exclusion of mobile home parks, in that such a use is a legitimate residential use category, was unconstitutional. See Appeal of Township of Middletown, 51 Pa. Commonwealth Ct. 465, 414 A.2d 768 (1980); Environmental Communities of Pennsylvania, Inc. v. North Coventry Township, 49 Pa. Commonwealth Ct. 167, 412 A.2d 650 (1980); Whitemarsh Township v. Kravitz, 39 Pa. Commonwealth Ct. 306, 395 A.2d 629 (1978); Meyers v. Board of Supervisors of Lower Makefield Township, 38 Pa. Commonwealth Ct. 578, 394 A.2d 669 (1978); McKee v. Township of Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976); Board of Page 251} Supervisors of Upper Frederick ...


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