McKown v. Board of Supervisors

520 A.2d 159, 104 Pa. Commw. 428, 1987 Pa. Commw. LEXIS 1995
CourtCommonwealth Court of Pennsylvania
DecidedMarch 9, 1987
DocketAppeal, No. 2512 C. D. 1985
StatusPublished
Cited by3 cases

This text of 520 A.2d 159 (McKown v. Board of Supervisors) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKown v. Board of Supervisors, 520 A.2d 159, 104 Pa. Commw. 428, 1987 Pa. Commw. LEXIS 1995 (Pa. Ct. App. 1987).

Opinions

Opinion by

Judge Craig,

In this zoning case, a landowner challenged the East Fallowfield Township Zoning Ordinance as exclusionary, alleging that it failed to provide for the townships fair share of mobilehome park development. The townships board of supervisors rejected the landowners challenge and curative amendment,1 concluding that the existing zoning ordinance, which provided for mobilehome park development, as such, in two-tenths of one percent (.2%) of the townships area, was not exclusionary because mobilehome park development could also be accomplished in the R-3 high density residential district. On appeal, the court of common pleas affirmed on the same grounds, without taking additional evidence. Consistent with our scope of review,2 we must determine [431]*431whether the board of supervisors erred in concluding that the zoning ordinance was not exclusionary with respect to mobilehome park development.

The landowner also asserts that the board of supervisors erred in permitting the late intervention of the township planning commission as a party in opposition to the landowners application for curative amendment.

The landowners 80-acre tract, located along Route 82, a major artery near Coatesville, is presently zoned O-I (Office/Industrial). Hilltop Mobilehome Park, a preexisting, nonconforming use,3 borders his property on the western side.

Only twenty-four of the townships 10,202 acres of land are specifically zoned for mobilehome park development. However, the board determined that mobile-home park development could also occur in the R-3 high density district under the planned residential development (PRD) provision in the ordinance.

Hence, the key issue is whether the provision in the zoning ordinance which allows for planned residential development necessarily allows for mobilehome park development so that the ordinance, viewed in its entirety, is not exclusionary with respect to mobilehome park development.

First, there is the landowners attack upon the late intervention of the planning commission.

Planning Commission Intervention

The board of supervisors permitted the planning commission to intervene on the second of four nights of hearings. The landowner asserts that the board of [432]*432supervisors erred in permitting that late intervention because the planning commission had no legally enforceable interest in the matter, and because the late intervention was prejudicial to the landowner in that it resulted in unnecessary factual repetition at later hearings.

As the trial judge correctly noted, this court has held that a township planning commission may intervene as a party in opposition to an application for curative amendment. Blouch Zoning Ordinance Appeal, 26 Pa. Commonwealth Ct. 147, 362 A.2d 1139 (1976). Because the record does not support the landowners assertion that the late intervention was prejudicial, as generating unnecessary repetition or otherwise, we find that the board of supervisors did not abuse its discretion in allowing the planning commission to intervene after the first hearing on the application.

Merits

Our courts have developed a fair share analysis to assess the exclusionary impact of zoning regulations which are alleged to be exclusionary with respect to a particular type of housing. In Surrick v. Zoning Hearing Board of Upper Providence Township, 476 Pa. 182, 382 A.2d 105 (1977), the Supreme Court set forth a three-part fair share analysis. Under that analysis, the initial inquiry must focus upon whether the community in question is a logical area for development and population growth. Once it has been established that the community is in the path of growth, the present level of development within the community is then examined. If that community is situated in the path of growth and is not already highly developed, the third step is to ascertain whether the zoning ordinance has the practical effect of unlawfully excluding the proposed use.

[433]*433The landowner asserts that the board erred in applying the Surrick analysis here because of the Supreme Courts decision in Fernley v. Board of Supervisors of Schuylkill Township, 509 Pa. 413, 502 A.2d 585 (1985). In Fernley, the Supreme Court held that a fair share analysis is inapplicable when reviewing a zoning ordinance which totally prohibits a basic type of housing. The landowner asserts that the Fernley holding is also applicable to situations, as here, where the zoning ordinance expressly provides only a “mere token” allowance for a basic type of housing. However, the Supreme Court specifically stated in Fernley that the fair share analysis was developed “as a means of analyzing zoning ordinances which effect a partial ban that amounts to a de facto exclusion of a particular use, as distinguished from those ordinances which provide for a total or de jure exclusion.” Fernley at 418, 502 A.2d at 588.

Although the zoning ordinance here provides only 24 acres for mobilehome park development, there is no outright prohibition against mobilehome park development, nor is there a total failure to allow it. At most, there can be a de facto exclusion. Hence, the board correctly applied the Surrick fair share analysis in reviewing the zoning ordinance.

In reviewing the boards decision, the trial court determined that the board found that East Fallowfield Township was not located within the path of growth and was not a logical place for increased development. However, an examination of the boards decision reveals that the board did not make any finding negating growth and development status. The board did find that “East Fallowfield Township is experiencing growth but said growth is not the result of an exodus from the adjoining municipalities.”4 Additionally, in its discussion section, [434]*434the board found that “[a]s a rural, residential Township naturally there has been growth. . . .” Although the decision further notes that the growth has not been in mobilehomes, these findings do not permit a conclusion that the board determined that the township was not in the path of growth. Indeed, those findings of the board necessarily import that the township was experiencing growth. The fact that the board proceeded to apply the further steps of the Surrick analysis in reaching its final conclusion is consistent with that reading of the findings.

As to whether the ordinance had the practical effect of unlawfully excluding mobilehome park development, the board determined that mobilehome park development was permitted in the R-3 high density residential district as a planned residential development. The landowner asserts a statutory construction argument that, because the zoning ordinance specifically provides for a mobilehome park district, and because the PRD district permits single-family dwellings, the “single-family dwelling” category cannot embrace mobilehome dwellings. This court rejected a similar argument in Colonial Park v. New Britain Township, 47 Pa. Commonwealth Ct.

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Related

Newtown Land Ltd. Partnership v. Zoning Hearing Board
30 Pa. D. & C.4th 170 (Bucks County Court of Common Pleas, 1996)
Swedeland Road Corp. v. Zoning Hearing Board
528 A.2d 1064 (Commonwealth Court of Pennsylvania, 1987)
McClimans v. Board of Supervisors
529 A.2d 562 (Commonwealth Court of Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
520 A.2d 159, 104 Pa. Commw. 428, 1987 Pa. Commw. LEXIS 1995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckown-v-board-of-supervisors-pacommwct-1987.