In Re Appeal of Shore

ZAPPALA, Justice.

We review an order of Commonwealth Court remanding this case to the Court of Common Pleas of Bucks County based on a finding that Solebury Township’s zoning ordinance unlawfully prohibited the development of mobile home parks. 107 Pa.Cmwlth. 522, 528 A.2d 1045. The question is whether this ordinance, which provides for a variety of housing types and population densities, is nevertheless exclusionary with regard to its treatment of mobile home parks.

In this protracted litigation, the Township first held that its ordinance did not prohibit mobile home parks, and denied *438the developer’s proposed curative amendment. On appeal, the court of common pleas found that the ordinance did prohibit mobile home parks, rejecting the Township’s contrary finding for lack of substantial evidence. Nevertheless, the court affirmed the denial of the curative amendment based on its reading of our decision in In Re: M.A. Kravitz Co., Inc., 501 Pa. 200, 460 A.2d 1075 (1983). Commonwealth Court also affirmed, based on the interpretation it had given Kravitz in Fernley v. Board of Supervisors of Schuylkill Township, 76 Pa. Commw. 409, 464 A.2d 587 (1983). While the developer’s petition for allowance of appeal was pending, we reversed the Commonwealth Court’s decision in Fernley at 509 Pa. 413, 502 A.2d 585 (1985). Accordingly, we granted the petition and remanded for reconsideration in light of our decision in Fernley. Commonwealth Court then determined that the ordinance improperly excluded mobile home parks, and remanded to the common pleas court for consideration in accordance with 53 P.S. § 11011(2). We granted the Township’s petition for allowance of appeal and now affirm.

The Township’s primary argument is that this case falls within the rationale of Kravitz. There, a plurality of this Court sustained an ordinance that failed to provide for townhouses although provision was made for residential uses other than single family detached dwellings. It did not approve a rule whereby an ordinance prohibiting a given residential use could nevertheless be sustained under the “fair share” analysis of Surrick. See 501 Pa. at 210-211, 460 A.2d at 1081. As was later made clear in Fernley, an ordinance that prohibits a particular use is not tested by the “fair share” analysis.

An important element of the plurality opinion in Kravitz, seemingly ignored in later cases looking to it for guidance, was the distinction between an ordinance prohibiting particular uses and an ordinance failing to provide for particular uses. A zoning ordinance, like all legislative enactments, is presumed to be valid and constitutional; one challenging it bears a heavy burden of proof. Demonstrating that an *439ordinance expressly excludes a particular use is perhaps the most clear-cut means of meeting that burden, for “the constitutionality of total prohibitions ... cannot be premised on the fundamental reasonableness of allocating to each type of activity a particular location in the community.” Exton Quarries Inc. v. Zoning Bd. of Adjustment, 425 Pa. 43, 59, 228 A.2d 169, 179 (1967). Though the proof is more difficult, it is also possible to show that a use is effectively prohibited throughout the municipality although it is apparently permitted. Benham v. Middletown Township, 22 Pa. Commw. 245, 349 A.2d 484 (1975).

In Kravitz, it was noted that the township had, on review, determined that townhouse development would be permitted in one of the residential districts, not by variance or special exception but as a permitted use. This determination, supported by substantial evidence in the record and affirmed by the court of common pleas, gave indication that the zoning power was not being used unreasonably. In other words, the challenger had not met its burden of proving that the ordinance effectively prohibited the proposed use.

Although the Township here claims that its ordinance merely fails to provide for mobile home parks, we are satisfied that the common pleas court did not err in characterizing the ordinance as effectively prohibiting mobile home parks. We note particularly that the ordinance recognized mobile home parks by including a definition of them, but did not list them in any of the residential zones, where the enumerated uses and no others were permitted. The Board’s original rationale, that mobile home parks would be permitted, essentially as subdivisions made available for rent, in either the Residential Development District or the Village Residential District is untenable. Although each individual unit in a mobile home park might qualify as a single family dwelling, the large minimum lot size for each dwelling (20,000 square feet) in those districts would make development of a mobile home park economically unfeasible, allowing at most only 2.1 units per acre before account*440ing for road right of way requirements. (By way of comparison, the developer proposed minimum lot sizes of 4300 square feet, at a density of 5.3 units per acre after allowing for road right of way and open space, a density described as lower than average for mobile home parks.)

We are aware that some early Commonwealth Court cases affirmed rulings where mobile home parks would have been required to meet minimum lot sizes of 20,000 square feet per dwelling unit. Cf. Delaware County Investment Corporation v. Zoning Hearing Board of Township of Middletown, 22 Pa. Commw. 12, 347 A.2d 513 (1975); Colonial Park for Mobile Homes, Inc. v. Zoning Hearing Board, 5 Pa. Commw. 594, 290 A.2d 719 (1972). In Delaware County Investment, however, the landowner had sought a variance from the township’s minimum lot size regulation and the court found no abuse of discretion in the finding that the landowner had not shown the unique hardship necessary to the grant of a variance. In Colonial Park, the court, while acknowledging that such evidence might exist, found no evidence in the record before it from which it could conclude that the burden of demonstrating the unconstitutionality of the ordinance had been met. Here, as stated, the court of common pleas ruled otherwise on the record before it, Commonwealth Court affirmed, and we find no error.

Commonwealth Court remanded this case to the court of common pleas for entry of an order consistent with Section 1011(2) of the Municipalities Planning Code, 53 P.S. § 11011(2). While this appeal was pending, however, the General Assembly repealed Article X of the Code, dealing with appeals of land use decisions, and replaced it with Article X-A. Act 1988-170. Unlike Section 1011(2), new Section 1006-A, 53 P.S. § 11006-A, does not enumerate specific factors that a court must consider in granting relief. Rather, as it did in 1972, the Code now grants courts broad discretion to approve the proposed use “as to all elements,” or to approve it “as to some elements, referring] other elements to the [appropriate authority] for *441further proceedings, including adoption of alternative restrictions, in accordance with the court’s opinion and order.” Although Act 1988-170 contained no indication as to whether the legislature intended it to be applicable to cases pending when it became effective, it would be inappropriate to require the court, on remand, to be guided by a statute that has been repealed.

The appellee argues that the proper relief in this case is entry of judgment ordering approval of the development as filed. This Court, however, is not in a position to determine the extent to which the proposal ought to be approved. The court of common pleas is best situated to judge whether the development should be approved as filed or whether the Board, under the supervision of the court, may require adherence to certain reasonable regulations.

Insofar as it reverses the August 7, 1985 order of the Court of Common Pleas of Bucks County, the order of the Commonwealth Court is affirmed. Insofar as it remands for entry of a supplemental order consistent with Section 1011(2) of the Municipalities Planning Code, 53 P.S. § 11011(2), the order of the Commonwealth Court is vacated. The case is remanded to the Court of Common Pleas of Bucks County for entry of an order and proceedings consistent with Section 1006-A of the Municipalities Planning Code, 53 P.S. § 11006-A. The court of common pleas shall retain jurisdiction during the pendency of this matter.

Jurisdiction relinquished.

Former STOUT, J., did not participate in the decision of this case. NIX, C.J., files a joining concurring Opinion. McDERMOTT, J., files a joining concurring Opinion in which PAPADAKOS, J., joins. LARSEN, J., files a dissenting Opinion.