Colonial Park for Mobile Homes, Inc. v. New Britain Township

Opinion by Judge Rogers, Colonial Park for Mobile Homes, Inc. has appealed from a decision of the Bucks County Court of Common Pleas which upheld the constitutionality of the New Britain Township Zoning Ordinance of 1974 and refused Colonial Park’s request for curative amendment. We affirm. In 1972, Colonial Park acquired a 15.4 acre tract of land in New Britain Township. At the time of Colonial Park’s acquisition of the tract a mobile home park accommodating 36 mobile homes was located on about one-fourth of its land area. Colonial Park continued to operate the park. In 1974, the Township enacted a zoning ordinance which placed the property in a district called “Holding Zone — 1”. On February 12, 1975, Colonial Park submitted a request for curative amendment to the Board of Supervisors of New Britain Township pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §11004 with a challenge to the substantive validity of the Township Zoning Ordinance. Colonial Park contended that the ordinance was unconstitutionally exclusionary because it makes no provision for mobile home parks within the township. Colonial — 462 — Park’s suggested cure was a proposed ordinance which would place its tract in a proposed new Mobile Home Park District where such parks would be permitted. The development plan which Colonial Park submitted with its curative amendment proposed development of its tract at a density of five and a half dwelling units per acre. After five nights of hearings, the Board of Supervisors rejected the request for curative amendment. The Court of Common Pleas of Bucks County, to which Colonial Park appealed the Supervisors’ action, affirmed the decision of the Board of Supervisors. Mobile home parks are a legitimate land use, East Pikeland Township v. Bush Brothers, Inc., 13 Pa. Commonwealth Ct. 578, 319 A.2d 701 (1974), and may not be wholly barred by zoning regulations without proof that the use of any land in the municipality for the purpose would be injurious to public health, safety or welfare. McKee v. Township of Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976). We agree with the Bucks County Common Pleas Court that the zoning ordinance in this case did not prohibit mobile home park use in all of New Britain Township. The respective positions of the parties are unusual. In the usual case of this class, the landowner desiring to use his land for a residential purpose forbidden by zoning regulations in the district in which the land is located contends that the regulations are unlawful because they forbid the use not only on his land but throughout the municipality; the municipality counters that, although its zoning regulations forbid the use in question on the landowner’s property, they allow it in other zoning districts with the result that there is no unlawful total exclusion. See, for example, Berger v. Board of Supervisors of Whitpain Township, 31 Pa. Commonwealth Ct. 386, 376 A.2d 296 (1977). Here, the municipality contends that un — 463 — der its zoning ordinance the nse which the landowner says is totally excluded, may be established anywhere within its boundaries, including, especially, that part of the landowner’s property not already devoted to the use. The use is permitted, the township declares, as a Planned Residential Development (PRD) upon application and approval. Somewhat parenthetically, we note that it is undisputed that under New Britain’s zoning regulations Colonial Park may expand its present operation by 50%, which raises the interesting question, which we are not here required to decide, of whether a landowner can successfully maintain that it is the victim of unconstitutional exclusion by the terms of an ordinance where the constitution itself (and here additionally, the zoning ordinance) gives it the right to expand its existing use. Rather than apply for approval of the establishment of an enlarged or new mobile home park as a PRD, as the township says is available to it, Colonial Park insists that the township has misconstrued its own ordinance and that the township’s zoning regulations forbid mobile home parks. The understandable reason for this unwillingness is that if the ordinance is struck down Colonial Park proposes to establish a mobile home park with a density of 5.5 units per acre — a more favorable result than would be obtained under the ordinance, which provides for a maximum density of 2.3 units per acre. This is, therefore, a lawyer’s case in which we are required to examine the zoning ordinance to see whether it excludes mobile home parks throughout New Britain Township, as Colonial Park says, or whether mobile home parks may be established under the PRD provisions anywhere in the township, as New Britain insists and the court below decided. There is a presumption that the ordinance is valid so that Colonial Park had the burden of proving its — 464 — invalidity. Appeal of Gro, 440 Pa. 552, 269 A.2d 876 (1970). The ordinance provides the following definitions: Section 248 Trailer Any vehicle designed, intended, arranged or used as a dwelling, whether arranged to stand on wheels or rigid supports. For the purpose of this Ordinance any inhabited trailer or mobile home shall be a single-family dwelling and as such, be subject to all applicable regulations in this or other Township Ordinances. Section 249 Trailer Park More than one trailer on a single lot. It is true that the ordinance does not explicitly declare that the use of land for trailer parks (or mobile home parks) is permitted; on the other hand, neither does it explicitly prohibit such use. One may wonder why trailer parks are defined if it was intended that they be excluded. The township contends that exclusion was not intended and that inclusion is provided by Article VI, Planned Residential District of its zoning ordinance. The two-opening sections of Article VI read: Section 600 Purpose It is the purpose of this Article to encourage and promote flexibility and ingenuity in the layout and design of new developments, enabling the developer to provide a variety of housing types, appropriate non-residential uses, while using open space areas to protect the environment and provide recreation on parcels of five (5) acres or more, through the creation of a Planned Residential Development District by the New Britain Township Supervisors. To meet these ends, procedures combining the administration of zoning and subdivision approval have been developed for use in PRD’s. — 465 — Section 601 Establishment of Districts Any landowner may request the establishment of a Planned Residential District on a tract containing five (5) or more acres of land, consisting of one or more contiguous parcels of land under one ownership. Such a district may be established by the New Britain Township Board of Supervisors in accordance with sections of this Article upon approval of a tentative plan, [sic] Paraphrased, these provisions say that the purpose of PRD is to provide a variety of housing types, that PRDs may be established on any parcel of five acres, and that such district may be established by the Board of Supervisors upon tentative approval of a plan for a PRD.1 Sections 603 through 608 of Article VI set out specific standards concerning density, open spaces, roads, recreation facilities, ownership of units2 and other particular features required of PRDs. Sections 608, 609, 610, 611 and 612 of Article VI of the ordinance are materially identical, respectively, to Sections 707, 708, 709, 710 and 711 of the Pennsylvania Municipalities Planning Code, 53 P.S. §§10707 — 466 — through 10711, relating to applications for tentative approval, public hearings of such applications, findings thereon, the status of the plan after tentative approval and applications for final approval. Hence, since a mobile home park is a type of housing and Colonial Park has considerably more than five acres left undeveloped of its 15 acre tract, it seems clear to us, as it did to the court below, that Colonial Park may apply for approval of a mobile home park on its unused ten or so acres as a PRD. If Colonial Park should apply for approval, and if its application conforms to the standards set out in Article YE (and there is no suggestion in this record that these standards cannot be met), it would be entitled to tentative approval of its plan. The matter of approval is not simply discretionary with the Board of Supervisors. In Doran Investments v. Muhlenberg Township Board of Commissioners, 10 Pa. Commonwealth Ct. 143, 309 A.2d 450 (1973), we held that the provisions of the Pennsylvania Muncipalities Planning Code relating to PRD require that the governing body must judge the merits of a PRD application by the standards set forth in the ordinance, and that the denial of tentative approval to a plan which does conform to the standards of the ordinance, except in exceptional circumstances, is an abuse of discretion. Colonial Park makes no assertion that New Britain Township has not undertaken to provide a fair share of the housing needs of the area. Indeed, of the total of 1628 dwelling units in the township about 6% are mobile homes and there are two existing mobile home parks, including the one operated by the appellant. A residential development with a density of 2.3 dwelling units per acre would, if all lots were to be equal in size, require each lot to contain about 18,700 — 467 — square feet.3 We have heretofore upheld zoning ordinances alleged to be exclusionary of mobile home parks requiring lots of 15,000 square feet (Russell v. Penn Township Planning Commission, 22 Pa. Commonwealth Ct. 198, 348 A.2d 499 (1975)); and 20,000 square feet (Delaware County Investment Corp. v. Middletown Township Zoning Hearing Board, 22 Pa. Commonwealth Ct. 12, 347 A.2d 513 (1975)) Colonial Park for Mobile Homes, Inc. v. Zoning Hearing Board, 5 Pa. Commonwealth Ct. 594, 290 A.2d 719 (1972). Colonial Park relies on Board of Supervisors of Upper Frederick Township v. Moland Development Co., 19 Pa. Commonwealth Ct. 207, 339 A.2d 141 (1975). The issue in that case, in which also a landowner desired to establish a trailer park, was whether an ordinance regulating lot sizes and dimensions was a proper exercise of a general legislative grant of authority to townships to pass ordinances for the protection of public health, safety and welfare, or whether it was a de facto zoning ordinance. We affirmed a lower court’s decision that the ordinance was a de facto zoning ordinance because it had not been enacted in accordance with the procedures required for the enactment by the Pennsylvania Municipalities Planning Code. We also agreed with the court below that the restrictions on lot development in the ordinance were such that mobile home parks were in fact totally excluded. The restrictions there were much more onerous than those of Article VI of the New Britain ordinance, as the following from Upper Frederick demonstrates: Among other requirements not here contested, Ordinance 60-1 requires minimum lot size of 31,250 square feet, a minimum frontage — 468 — on a public street of 125 feet, minimum lot depth of 250 feet, minimum front yard of 60 feet, and also has side and rear yard requirements. It provides exceptions for a ‘private garage or other accessory building’ and also provides for ‘Exceptions for Hardships’. It specifically permits trailers as long as they comply with all the above requirements and a somewhat more restrictive side yard requirement. Upper Frederick, supra, at 211, 339 A.2d at 143. Moreover, while the operator of Colonial Park’s existing mobile home park testified that federal agencies have approved loans for mobile home parks of eight units per acre and that it was his opinion mobile home buyers don’t want to place them on large lots, there is no evidence in the record that a mobile home park with a density of 2.3 units per acre would be infeasible.4 The same witness testified, moreover, that he was unfamiliar with the PRD provisions of New Britain’s zoning ordinance. Colonial Park also erects an argument based on Section 501 of the Pennsylvania Municipalities Planning Code, 53 P.S. §10501, which provides that regulations regarding mobile home parks “shall be set forth in separate and distinct articles of any subdivision and land development ordinance pursuant to Article V or any planned residential development ordinance adopted pursuant to Article VII.” The argument seems to be that since there are no separate and distinct articles regulating mobile home parks by name in New Britain’s ordinance, mobile home parks have not been provided for and are therefore — 469 — excluded. We do not believe that Section 501 means that if mobile home parks are to be permitted they must be specially regulated but that it means if the municipality wishes specially to regulate mobile home parks it must do so in separate and distinct articles. Since mobile home parks constitute a legitimate type of housing which may not be excluded, we see no reason why they cannot be made subject to regulations generally applying to all PRD uses. In sum, we agree with the Court of Common Pleas of Bucks County that Colonial Park did not carry its burden of proving that the New Britain Township zoning ordinance excluded the establishment of mobile home parks and with the township’s assertion that the ordinance indeed permits the establishment of a park on Colonial Park’s land. Order affirmed. Order And Now, this 30th day of November, 1979, the order of the Court of Common Pleas of Bucks County made February 28,1978 is affirmed. Footnotes [1] Section 404 of Article IV of the ordinance is a presentation in tabular form of the uses permitted in the several zoning districts. Among the residential uses listed is “Planned Residential Development” under which appears a footnote saying “This use requires a zoning change.” This phrase clearly refers to Section 601’s statement that a PRD district may be established by the Board of Supervisors upon approval of the tentative plan for the PRD. [2] Section 601(1) (6) provides that a density bonus shall be allowed where the plan provides for individual ownership of dwelling accommodations. This makes it plain that more than one dwelling unit may be established on a lot, defined elsewhere as a parcel of land in one ownership. It will be recalled that a trailer park is defined as more than one trailer on a single lot. [3] Under New Britain’s PRD regulations individual lots may be as small as 9,000 square feet. [4] Article VI offers a number of density bonuses for the provision of services which could increase the number of allowable units per acre.