Colonial Park for Mobile Homes, Inc. v. Zoning Hearing Board

Opinion by

Judge Rogers,

TMs appeal is from a final order of the Court of Common Pleas of Bucks County. The Zoning Officer of the Borough of New Britain refused the appellant corporation’s application to use a tract of land as a mobile home park. The Zoning Hearing Board upheld the Zoning Officer and the court below, without hearing additional evidence, affirmed the Board. It is our duty to determine AArhether the Board abused its discretion or committed an error of law.

The appellant is a family-Owned corporation. Its business predecessors were Mr. and Mrs. Wilfred J. Childs, who took title to 5.39 acres in Doylestown Township, Bucks County, in 1919. In 1947, Mr. and Mrs. Childs acquired a tract containing 18.327 acres, the subject of this lawsuit, located in New Britain Borough adjacent to their land in Doylestown Township. In 1948, they established on the five-acre tract a mobile home park of 73 places and a mobile home sales agency. These businesses were operated by Mr. Childs until his death in 1965, and since that time they have been conducted by Mrs. Childs and a son. The appellant corporation Avas created in 1966 and all of its stock is Owned by the Childs, mother and son. When the park was first established, its sewage facilities were placed within the 18-acre tract in New Britain Borough, and at some time unspecified in the record a recreation facility consisting of a baseball field, one seesaw, two swings, a sandbox, and a patio, all for use of residents of the park, were also placed on the lands in New Britain Borough. The mobile home park was subsequently attached to a public sewage system and the private facilities abandoned. In addition, the baseball field fell into disuse.

New Britain Borough enacted a zoning ordinance and map in 1963. The appellant’s land was included within the “R”-Residence district in this and in a subsequently enacted ordinance to which we will later refer. A general regulation of the 1963 ordinance prohibited the use of any lot in the Borough as a mobile home park.

In 1967, the owners of appellant corporation formed the desire to use the 18-acre tract located in the Borough for mobile home park purposes. A principal reason for their decision was the stimulus they believed would be provided to the sales of mobile homes by the availability of lots for use by purchasers, there being a scarcity of such facilities in the vicinity. They memorialized the municipal authorities of New Britain Borough to amend its zoning ordinance without success. In January 1968, they filed the instant application to construct spaces for 112 mobile homes. No hearings were conducted by the Zoning Hearing Board until November 1969, as the result of postponements requested by the applicant based upon the illness of one of its owners. During the twenty-two months’ period between the date of the original application and the time when hearings finally commenced, the Borough Zoning Ordinance was first amended and then in June 1969, entirely supplanted by a new ordinance. Both the amendment and the new ordinance removed the prohibition of mobile home parks as permitted uses in the Borough.1 The new ordinance is not in this record. The court below commented, however, that under it appellant’s land might be used as a mobile home park upon compliance with the regulations of the “R” district that each home be on a lot having a minimum area of 20,000 square feet and a minimum width of 100 feet. This statement is not here questioned by appellant.

The record contains extensive testimony concerning the character of uses in the immediate vicinity of appellant’s property, as well as opinion testimony of real estate experts to the effect that the highest and best use of the 18-acre tract would be for the enlargement of the existing mobile home park located in Doylestown Township. We do not detail this evidence because we deem it immaterial to the decision in this case. Jasy Corp. v. Board of Adjustment of Upper Moreland, 413 Pa. 563, 198 A. 2d 854 (1964). There is no evidence in the record that the Borough’s zoning restrictions had the effect of reducing the value of appellant’s land to distress figures, that the tract could not be profitably developed in accordance with the zoning regulations or indeed that it could not feasibly be developed as a mobile home park in conformity with the lot area and width requirements of the ordinance. There is further nothing on this record concerning the Borough of New Britain, its population, its land area, the types of existing land use, the extent of present development or the amount of vacant land available for development.

We are asked to reverse the court below, whose opinion was prepared by the able and experienced Judge Edwin H. Satterthwaite, on the grounds that it erred (a) in not holding that the Zoning Hearing Board had abused its discretion in failing to grant a variance for the extension of the appellant’s existing mobile home park over its land in the Borough on which it had engaged in alleged nonconforming activities; or (b) in not holding that the 1963 ordinance was of exclusive applicability and was unconstitutional because it prohibited all mobile home parks; or (c) in not holding that the new ordinance, if applicable, is unconstitutional and of no effect because it imposes upon mobile home parks the same restrictions as are imposed on other residential uses. The appellant is wrong on all counts.

I — The Application for Variance

We do not understand the appellant to argue that it is entitled to a variance apart from a consideration of the activities which it contends constituted nonconforming uses. Indeed, in the absence of evidence that the land as zoned has only distress value such an argument would be unavailing. Mere economic hardship will not support the grant of a variance (Spadaro v. Zoning Board of Adjustment, 394 Pa. 375, 147 A. 2d 159 (1959)); except where the zoning regulations complained of render the complainant’s property practically valueless. Peirce v. Zoning Board of Adjustment, 410 Pa. 262, 189 A. 2d 138 (1963). Rather, appellant contends that because it acquired the property in question in 1947 for future expansion of the mobile home park it intended to establish and because it later used portions of it for sewage disposal and recreation, it may use the tract as a mobile home park. Since the sewage facility and baseball field were not in use at the time the application was made, appellant’s argument rests either on the proposition that the presence of a seesaw, two swings, and a patio may be expanded to a community of 112 homes which the record shows will house more than 300 persons using 224 automobiles; or that the mobile home park on its land in Doylestown Township accorded it the right to expand into the adjoining Borough. The first proposition must be rejected not only because it would be unreasonable to erect upon such an exiguous employment of land a whole community of homes, but also because the assertedly qualifying uses were in fact not nonconforming. Section 301(5) of the 1963 Borough ordinance specifically permits the use of land in the “R” district for “noncommercial park, playground or recreational area” purposes. The alternative contention that the use of the Township tract as a mobile home park established a nonconforming use of land in the Borough falls for several reasons. First, there is no proof in this record that the mobile home park use did not conform to Township regulations. Appellant’s counsel was astute to exclude from the hearings as irrelevant -all reference to the Township regulations. If in fact the appellant’s use of its land- for a mobile home park conformed to regulations of the Township, or if there were no such regulations, appellant had no nonconforming, use anywhere, and is left with the palpably specious contention that the doctrine of nonconforming use ensures one who engages in a periaitted use in one zoning district the right to engage in the same use in an adjoining district where such use is prohibited.

Furthermore, municipal boundaries have significance. Michener Appeal, 382 Pa. 401, 115 A. 2d 367 (1955). In Bilbar Construction Co. v. Easttown Township Board of Adjustment, 393 Pa. 62, 68, 141 A. 2d 851, 854, 855 (1958), Mr. Chief Justice Charles Alvin Jones wrote: “It is plain enough that zoning restrictions in one township cannot be permitted to control or impinge upon the zoning regulations which a contiguous township may see fit to adopt.”

Finally, and very basically, the appellant and its predecessors held its land in the Borough for 15 years before zoning and for an additional five years after-wards without doing anything with it which would suggest to their neighbors that this was to be the site of a 112-unit mobile home park. As Mr. Justice Musmanno commented in Cook v. Bensalem Township Zoning Board of Adjustment, 413 Pa. 175, 179, 196 A. 2d 327, 330 (1964) : “Only physical evidence manifested in the most tangible and palpable form can bring about the application of nonconforming clauses in a zoning ordinance. Before a supposed nonconforming use may be protected, it must exist somewhere outside the property owner’s mind.”

II — The Applicability op the 1963 Ordinance

The appellant states that it is entitled to its proposed mobile home park because the Borough’s 1963 ordinance, in effect when it applied for a permit in 1968, contained an unconstitutional prohibition of all mobile home parks. Its contention, although not couched in those terms, is that it acquired a vested right in an unconstitutional ordinance of which it might not be dispossessed by curative action of the Borough taken subsequent to the filing of its application. It insists on this argument despite the fact that the almost two years’ delay beween the date of the filing of its application and the Board hearings was occasioned solely by its inability to proceed with the hearings.

The appellant in this phase of its case relies upon that line of authorities holding that a zoning restriction enacted subsequent to the application for a permit in order to frustrate the application are ineffective for that purpose. Gallagher v. Building Inspector, City of Erie, 432 Pa. 301; 247 A. 2d 572 (1968); Lower Merion Township v. Frankel, 358 Pa. 430, 57 A. 2d 900 (1948); Limekiln Golf Course, Inc. v. Zoning Board of Adjustment of Horsham Township, 1 Pa. Commonwealth Ct. 499, 275 A. 2d 896 (1971). These cases provide a salutory exception to the general rule that the obtaining of a permit and an outlay of money or in incurring of liabilities is required to confer a vested right to proceed contrary to new regulations. Penn Twp. v. Yecko Bros., 420 Pa. 386, 217 A. 2d 171 (1966). The principle relied on has no application here. Both the amendments to the 1963 ordinance and the new ordinance of 1969 liberalized rather than restricted the use proposed by the appellant; they removed the ban on mobile home parks and permitted them, subject to the regulations generally applicable to residential use. Further, there is no evidence on this record that the Borough’s action was motivated by the appellant’s application. The applicant’s contention first advanced in meetings with Borough Council in the summer of 1967 seems to have been based upon Exton Quarries, Inc. v. Zoning Board of Adjustment, 425 Pa. 43, 228 A. 2d 169 (1967), decided in March of that year. That case held that a general prohibition of an otherwise legitimate use required more substantial justification in the public interest than mere regulation of such a use. This holding may well have provided the impetus for the zoning changes made by the Borough. The appellant would have to make out a case of extraordinary appeal to induce us to hold that a municipality may keep apace of shifting and changing zoning principles only at the pain of suffering unwanted uses sought by those seeking advantage of the latest judicially discovered imperfection.

The 1963 ordinance, having been supplanted under circumstances not indicating a special purpose to deny appellant’s proposed use of its land, was not in this case when the Board rendered its decision.

III — -The Validity of the 1969 Ordinance

As previously noted, it is conceded that the zoning ordinance in effect in New Britain Borough after June 1969, permitted mobile home parks subject to zoning provisions generally applicable to residential uses. Tbe appellant desires to place mobile homes on lots, none larger, than 7000 square feet. The ordinance requires 20,000 square- feet in the “R” district in which appellant’s land was and is located. While the new ordinance is not before us, the 1963 ordinance is, and we note that in a district other than “R,” in which residential uses are permitted, the minimum lot size requirement is of only 10,000 square feet.' There being no municipality-wide prohibition, the presumption of the. ordinance’s validity persisted. Beaver Gasoline Co. v. Zoning Board of the Borough of Osborne, et al., 445 Pa. 571, 285 A. 2d 501 (1971). It was applicant’s burden to overcome this presumption. It does not, we believe, do so by showing only that the sizes of the lots it proposed are as large as lots usually found in mobile home parks. This is especially the case where, as here, there are apparently areas of the Borough in which spaces as small as 10,000 square feet would be authorized. In any event, there is no evidence here that a mobile home park conforming to the “R” district regulations could not feasibly be created and conducted on appellant’s property. "

Except where there is a municipality-wide prohibition of an otherwise legitimate activity, the constitutional challenger may overcome the presumption of validity only, with the arms and"Armaments of facts. While the Supreme Court of Pennsylvania has declared that in zoning cases the-courts may-consider “a challenge to the constitutionality of a zoning ordinance as a whole without first exhausting the question of the constitutionality of the ordinance as applied” (Exton Quarries, Inc. v. Zoning Board of Adjustment, supra), we know of no authority in this class of case2 for striking down the regulation without reference to the characteristics of the municipality whose legislation is under consideration. At we have noted, this record contains nothing concerning New Britain Borough upon which we could conceive an inclination, much less form a judgment, as to the constitutionality of the requirement in question. The appellant relies chiefly, of course, on Girsh Appeal, 437 Pa. 237, 263 A. 2d 395 (1979), which held pertinently that a zoning ordinance which unreasonably failed to provide for apartment uses was unconstitutional. There, apartments were not expressly prohibited, but might be and had in the past been, allowed by variance. In contrast, the instant regulations permit mobile home parks, subject to the regulations heretofore mentioned. Having thus ascertained that mobile home parks are indeed permitted (and without necessity of obtaining a variance) we might end our discussion with the conclusion that Girsh does not control. Unquestionably, however, Girsh stands for the principle that restrictions upon types of living-accommodations are to be considered in a more critical fashion than restrictions upon nonresidential uses. Mobile home parks are a type of living accommodation preferred by some persons. If, therefore, the New Britain Borough regulations have an effect properly characterized as unreasonably failing to provide for this type of use throughout the Borough they might be found to be invalid. But there is not only no proof here that this ordinance has this effect, there is nothing upon which we might decide whether in this Borough such total proscription was unreasonable. Again by contrast, the record in Girsh, the original of which out of caution we have examined, contains a detailed description of the township there involved, including its physical characteristics, population, extent of development, zoning regulations, public transportation facilities, and its location with reference to the City of Philadelphia. The conclusion that the allowance of apartments only by variance was an unreasonable failure to provide for this accepted type of residential use flowed from all of these facts, many of which are included in the several opinions filed in that case. Again, however, we emphasize that the New Britain Borough Ordinance here effective neither prohibits nor requires a variance for mobile home parks; it merely regulates the size and dimensions of lots, apparently differently in the several zoning districts. Such regulation of apartments was indeed recommended by the majority in Girsh: “Certainly it can protect its attractive character by requiring apartments to be built in accordance with (reasonable) setback, open space, height and other light-and-air requirements. ...” 437 Pa. at 245, 263 A. 2d at 399.

We will doubtless be confronted by a case in which we must decide the companion to Girsh, with the mobile home park developer as a protagonist. This is not that case.

Affirmed.

1 Appellant asserts that the 1963 ordinance also prohibited the use of mobile homes as dwelling houses throughout the Borough. The 1963 ordinance is in the record and we find in it no such prohibition.

2 Ammon R. Smith Auto Co. Appeal, 423 Pa. 493, 223 . A. 2d 683 (1966), represents the exception. There a sign ordinance forbidding flashing signs, but none other, was invalidated out of hand. In Norate Corporation, Inc. v. Zoning Board of Adjustment, 417 Pa. 397, 207 A. 2d 890 (1965), a ban on “off-site” advertising signs was nullified with little consideration of factual matters.