Geiger v. Zoning Hearing Board

Dissenting Opinion by

Judge Rogers :

I respectfully dissent.

This case concerns true mobile homes; that is, objects which can be lived in but which also can be readily moved to other locations. It does not concern objects which, once mobile homes, have been given permanent foundations and embellished with patios, awnings and other decorative features. I do not believe that an ordinance which provides that true mobile homes may be placed only in mobile home parks effects a total exclusion of true mobile homes from the municipality. In Gravatt v. Borough of Latrobe, 44 Pa. Commonwealth Ct. 475, 404 A.2d 729 (1979), appeal dismissed, 491 Pa. 424, 421 A.2d 210 (1960) and County of Fayette v. Holman, 11 Pa. Commonwealth Ct. 357, 315 A.2d 335 (1973), we held that true mobile homes, permitted in some zoning districts, may be excluded from others. I fail to discern a material difference between those cases and this; that is, between the ordinances providing for zoning districts where the location of mobile homes is permitted in the cases cited and the ordinance in this case providing for mobile home parks in which the location of mobile homes is similarly permitted. There are eleven mobile home parks in North Whitehall Township and there is no evidence in this record that these facilities cannot accommodate the appellants ’ mobile home.

I disagree with the majority’s holding that “mobile homes on individual lots” is a discrete use pro*368tected by constitutional principles against total exclusion. Various forms of housing have been identified as entitled to protection from total exclusion for the purpose of assembling living accommodations to persons having low or moderate incomes. Multifamily structures, row houses and indeed trailer parks have been identified as such protected uses. But these allowances are made without regard to whether the forms of protected housing are, or are proposed to be, available for rental or for sale. Undoubtedly, the true mobile home is identifiable as a form of housing convenient for low and moderate income persons and therefore protected from total exclusion by the constitution; but this allowance, too, should be without regard to ownership of the mobile home or the land on which it rests. There is no more warrant to declare that the location of a mobile home on an individual lot is a discrete use protected by the constitution than there is to hold that an apartment in individual ownership must be expressly allowed. We have held that ownership is not a proper subject of zoning. We wrote in County of Lafayette v. Cossell, 60 Pa. Commonwealth Ct. 202, 204, 430 A.2d 1226, 1228 (1981) that:

Zoning regulations “concern the physical use to which the land is put.” See Sears Roebuck and Co. v. Power, 390 Pa. 206, 134 A.2d 659 (1957) (holding sales law concepts not to be relevant to zoning). Zoning laws, enactments under the police power, are not concerned with method of ownership of property. See Kaufman and Broad, Inc. v. Board of Supervisors of West Whiteland Township, 20 Pa. Commonwealth Ct. 116, 340 A.2d 909 (1975) (holding the condominium form to be a method of ownership, and not a proper subject of zoning). Zoning ordinances regulate usage; if a use is permitted, a municipality may not regulate the manner of *369ownership of the legal estate. See Goldstein v. Upper Merion Township, 44 Pa. Commonwealth Ct. 201, 403 A.2d 211 (1979) (holding that the exercise of an option is irrelevant to zoning).

Further, I respectfully submit that this court has not “recognized mobile homes [on individual lots] ... as a separate and distinct land development use” as the majority writes. The cases cited in the majority opinion deal with mobile home parks.

■The majority’s holding accords the true mobile home a unique double allowance. We have held that mobile home parks are a discrete use protected by the constitution1 and by this case we hold that a mobile home on an individual lot is also a discrete use similarly protected.

I would reverse the order of the Court of Common Pleas of Lehigh County.

Judges Doyle and Barky join in this dissent.

Meyers v. Board of Supervisors of Lower Malcefield Township, 38 Pa. Commonwealth Ct. 578, 394 A.2d 669 (1978).