Geiger v. Zoning Hearing Board

Opinion by President Judge Crumlish, Jr., The North Whitehall Township appeals a Lehigh County Common Pleas Court order which reversed the Zoning Hearing Board’s decision and declared the Township Zoning Ordinance unconstitutional.1 We affirm. The Geigers sought to establish a mobile home on their 4-0-aere single-family dwelling lot.2 They filed for a special exception pursuant to Section 705.3.3(jj) of the North Whitehall Township Zoning Ordinance, which allows for the placement of a mobile home on an individual lot only for related persons who are dependent on their family by virtue of physical and/or mental disability. The Geigers requested a constitutional challenge to the ordinance be held in abeyance until the Board ruled on the exception. The Board denied the exception. The Geigers then instituted the constitutional challenge to the ordinance, which excludes any placement of mobile homes on a single residential lot but permits mobile home parks in the municipality.3 The Common [364] Pleas Court concluded that the ordinance was unconstitutionally exclusionary.4 This is a case of first impression before this Court. The central issue is whether the zoning ordinance, by restricting the use of mobile homes to mobile home parks, unconstitutionally excludes the placement of mobile homes on individual lots. A constitutional challenge to a zoning ordinance must overcome a presumption of validity by proving that the ordinance entirely excludes a legitimate use; the burden then shifts to the municipality to show that the exclusion reasonably relates to public health, safety and welfare. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971). The Township contends this ordinance is not exclusionary and that “mobile home” as a use is a term of art with a generic meaning. This Court has recognized mobile homes (on individual lots) and mobile home parks as separate and distinct land development uses, Meyers v. Board of Supervisors, Lower Make-field Township, 38 Pa. Commonwealth Ct. 578, 583, 394 A.2d 669, 671 (1978), and further held in Environmental Communities of Pennsylvania, Inc. v. North Coventry Township, 49 Pa. Commonwealth Ct. 167, 412 A.2d 650 (1980), that a mobile home park is a .planned community involving social, recreational and commercial activities. We have not grouped mobile homes (individually) and mobile home parks in a generic sense nor have we substituted parks for mobile homes on individual lots. It is well-settled that the use of land as a mobile home park is a legitimate use. McKee v. Township of [365] Montgomery, 26 Pa. Commonwealth Ct. 487, 364 A.2d 775 (1976). In addition, we have held that the use of mobile homes municipality-wide is a legitimate property use. Villa, Inc. v. Zoning Hearing Board, Old Forge Borough, 57 Pa. Commonwealth Ct. 221, 426 A.2d 1209 (1981). In Board of Supervisors of Upper Frederick Township v. Moland Development Co., 19 Pa. Commonwealth Ct. 207, 339 A.2d 141 (1975), we declared unconstitutional an ordinance that specifically permitted mobile homes but excluded mobile home parks. Here, we are presented with the reverse situation. North Whitehall Township provides specifically for the development of mobile home parks, yet totally excludes mobile home placement on individual lots.'5 The only provision for mobile homes on individual lots stems from a restrictive special exception to the total ban by the Township. Although not specific, the zoning ordinance effectively excludes mobile homes on individual lots in the municipality by restricting the [366] use of mobile homes to mobile home parks. In Zajac v. Zoning Hearing Board of Mifflin Township, 41 Pa. Commonwealth Ct. 7, 398 A.2d 244 (1979), this Court held where a use is conditioned, by way of a special exception, the provision cannot be mere tokenism. We hold that this token special exception is equivalent to a total prohibition of mobile homes on individual lots, a legitimate land use. “When it is demonstrated that an ordinance entirely excludes a facially legitimate use, the presumption of validity is rebutted; and the municipality must then present evidence to establish that its regulation bears a relationship to the public health, safety and welfare.” Fox Chapel Borough Appeal, 33 Pa. Commonwealth Ct. 256, 259, 381 A.2d 504, 506 (1978) (citing Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571, 285 A.2d 501 (1971)). Our careful review of the record reveals that the Township’s proof fails to show that a change in status quo will affect the health, safety or welfare of the Township’s residents. That being so in this case, we hold the ordinance unconstitutional.6 We hold, further, that the Zoning Hearing Board did commit an error of law in its holding that the ordinance was not exclusionary. The Board has failed to remove the stigma of “exclusionary” because it did not establish [367] that its regulation bears a relationship to the public health, safety and welfare. Affirmed. Order The Lehigh County Common Pleas Court order, No. 82-C-1555 dated November 23, 1982, is affirmed. Footnotes [1] Section 204.3.1 of the North Whitehall Township Zoning Ordinance. [2] This district is zoned A-R (Agricultural-Rural). [3] The record reveals that North Whitehall Township contains eleven mobile home parks. [4] Our scope of review, where no additional evidence is taken by the lower court, is limited to a determination of whether the Zoning Hearing Board abused its discretion or committed an error of law. Appeal of Township of Middletown, 51 Pa, Commonwealth Ct. 465, 414 A.2d 768 (1980). [5] It is this total exclusion which distinguishes this case from a previous line of cases involving mobile homes on individual lots: Anstine v. Zoning Board of Adjustment, 411 Pa. 33, 190 A.2d 712 (1963), which held that a zoning ordinance provision prohibiting the location of mobile homes on individual lots in a particular residential district placed an unreasonable and discriminatory restriction on the use of the property in question; County of Fayette v. Holman, 11 Pa. Commonwealth Ct. 357, 315 A.2d 335 (1973), which upheld a zoning provision excluding mobile homes on individual lots from a particular residential district but permitting them in eighty percent of the county where such regulation is related to the general welfare of the community considering aesthetics and property values; and Gravatt v. Borough of Latrobe, 44 Pa. Commonwealth Ct. 45, 404 A.2d 729 (1979), appeal dismissed, 491 Pa. 424, 421 A.2d 210 (1980), which upheld a zoning ordinance which excluded mobile homes on individual lots from certain districts and permitted them in other districts on the sole ground that the mobile home “travels” to its permanent site on its own running gear. [366] This case involves the total exclusion of a legitimate use (mobile homes on individual lots) within the township. For this reason, we must apply the test which the courts of this Commonwealth have formulated for the total exclusion of a legitimate use. Bee Beaver Gasoline Co. In Anstine, Holman and Gravatt, the germane question was whether the exclusion of mobile homes on individual lots from certain districts was proper. In this case, the relevant question is whether the total exclusion of a legitimate use, which happens to be mobile homes on individual lots, is justified. [6] Since we have determined the ordinance is unconstitutional on other grounds, we need not address the Geigers’ contention that the ordinance is unconstitutional because it fails to follow the Township’s Comprehensive Plan..