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ZONING BOARD ADJUSTMENT CITY PHILADELPHIA AND CITY PHILADELPHIA AND ASHTON SQUARE CIVIC ASSOCIATION v. WILLITS WOODS ASSOCIATES (12/16/87)

decided: December 16, 1987.

ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA AND CITY OF PHILADELPHIA AND ASHTON SQUARE CIVIC ASSOCIATION, APPELLANTS
v.
WILLITS WOODS ASSOCIATES, APPELLEE. WILLITS WOODS ASSOCIATES, APPELLANT V. ZONING BOARD OF ADJUSTMENT OF THE CITY OF PHILADELPHIA AND CITY OF PHILADELPHIA AND ASHTON SQUARE CIVIC ASSOCIATION, APPELLEES



Appeals from the Order of the Court of Common Pleas of Philadelphia County in the case of Willits Woods Associates v. Zoning Board of Adjustment of the City of Philadelphia, No. 229 September Term, 1986.

COUNSEL

Carl Oxholm, III, for appellant/appellee, Zoning Board of Adjustment of the City of Philadelphia.

Mary Ellen Krober, with her, Flora Barth Wolf, for appellants/appellee, City of Philadelphia.

Stanley R. Krakower, for appellant/appellee, Ashton Square Civic Association.

Lenard L. Wolffe, with him, Nancy Abrams, Pechner, Dorfman, Wolffe, Rounick & Cabot, for appellant/appellee, Willits Woods Associates.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 112 Pa. Commw. Page 25]

The Zoning Board of Adjustment of the City of Philadelphia (ZBA), the City, and the Ashton Square Civic Association (Ashton) appeal an order of the Court of Common Pleas of Philadelphia County (trial court) which sustained the zoning appeal of Willits Woods Associates (Willits) as uncontested and thereby ordered the City's Department of Licenses and Inspections to issue permits to Willits for the development of a mobile

[ 112 Pa. Commw. Page 26]

    home park. For the reasons set below, we vacate and remand.

On January 2, 1986, Willits applied to the Department of Licenses and Inspections for various use permits necessary for the development of a 217-unit mobile home park on a parcel of land located adjacent to the Northeast Philadelphia Airport in northeast Philadelphia. The application was denied on grounds that a mobile home park is not a permitted use within the districts into which the parcel is zoned.

On January 31, 1986, Willits appealed the departmental denial to the ZBA contending that the Philadelphia Zoning Code's failure to specifically provide for a trailer camp district anywhere in the City constitutes an unconstitutional de jure exclusion. Willits argued that it is entitled to develop a mobile home park on the proposed site as a remedy for the Zoning Code's constitutional deficiency.

The ZBA conducted three days of hearings on Willits' appeal. During these hearings, various protestants of the mobile home park, including Ashton, challenged the ZBA's jurisdiction to decide the constitutional exclusionary zoning issue. By letter dated August 27, 1986, the ZBA denied Willits' appeal for the reason that mobile home parks were prohibited on the land parcel as zoned. With regard to Willits' de jure exclusionary zoning challenge, the ZBA stated that as an administrative agency established under the Philadelphia Home Rule Charter, it did not have the authority to determine the constitutional validity of the Zoning Code.

Willits filed an appeal from the ZBA decision with the trial court on September 3, 1986. According to Rule 146 (VII)(B) of the Philadelphia Local Rules of Civil Procedure, the ZBA was required to transmit the certified record to the trial court within 40 days ...


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