57 Pa. Commw. 221 | Pa. Commw. Ct. | 1981
Opinion by
The Villa, Inc. (appellant) appeals from the decision of the Court of Common Pleas of Lackawanna County which affirmed the determination, of the Zoning Hearing Board of the Borough of Old Forge (Board) in its denial of the appellant’s challenge to the validity of Borough Ordinance No. 6 of April 29, 1976.
On May 17, 1971, Louis Ciuccio, who with three other individuals and their wives
In 1972, the Borough passed a comprehensive subdivision ordinance which, inter alia, permitted mobile home parks as a use in S-l and R-2 zones, but required submission of detailed proposals of such projects to the Borough Planning Commission. On April 23, 1974, in compliance with the ordinance,
On April 29, 1976, in response to a petition from area residents and landowners, the Borough enacted two amendments to the Borough Zoning Ordinance: Ordinance No. 5 which eliminated mobile home parks as a use in an R-2 zone, and Ordinance No. 6 which rezoned three hundred twenty-five acres, including the prior owners’ sixty-seven acre tract, from S-l (special purpose open space district) to R-l (low-density residential zone). Mobile home courts were a permitted use in an S-l, but not in an R-l, zone. The prior owners did not challenge the validity of these amending ordinances.
Four months later, on August 25, 1976, the prior owners conveyed the sixty-seven acres, now zoned R-l, by quit claim deed to the appellant corporation of which the prior owners were the stockholders, and on May 12,1977, the appellant corporation asserted a constitutional challenge to the validity of Ordinance No. 6. The Board made extensive findings of fact and concluded that Ordinance No. 6 was a non-confiscatory pro tanto amendment of the Borough Comprehensive Plan, and that, inasmuch as no development applications of the prior owners were pending at the time of its enactment, the applicant corporation took title to the sixty-seven acre tract subject to the 1976 amendment.
Where, as here, the court below affirmed the Board without taking additional testimony, our scope of review is limited to a determination of whether or not
The appellant asserts that Ordinance No. 6, when viewed in conjunction with Ordinance No. 5, constitutes an unconstitutional de facto exclusion of mobile home parks inasmuch as Old Forge had failed to provide a “fair share” of borough land for that nse. Township of Williston v. Chesterdale Farms, 462 Pa. 445, 341 A.2d 466 (1975). When a use is not expressly excluded throughout a municipality, a presumption of validity and constitutionality attaches to the ordinance, even when it is challenged as de facto exclusionary, Russell v. Penn Township Planning Commission, 22 Pa. Commonwealth Ct. 198, 348 A.2d 499 (1975), and, therefore, a zoning ordinance containing no municipality-wide prohibition of mobile homes, a legitimate property use, is presumed to be constitutionally valid. A party asserting otherwise has a heavy burden of proof, Delaware County Investment v. Middletown Township Zoning Hearing Board, 22 Pa. Commonwealth Ct. 12, 347 A.2d 513 (1975), and must prove that a lawful use is directly banned from the municipality or is effectively prohibited although apparently permitted. Benham v. Middletown Township Board of Supervisors, 22 Pa. Commonwealth Ct. 245, 349 A.2d 484 (1975).
Our Supreme Court has provided a three-point test to be utilized when determining whether or not a zoning ordinance is unconstitutionally exclusionary: the court must determine (1) whether or not the community in question is a logical area for development and growth, (2) the present level of development in the
In determining whether or not the community is a logical place for development and population growth, courts have considered the proximity of the community to a large metropolis as well as projected population growth figures for the community and the region. Old Forge is located five miles south of Scranton, a city with a population of under 100,000, and while the record is devoid of projected population growth figures, other indices can be considered in making this evaluation. In Fox Chapel Borough Appeal, 33 Pa. Commonwealth Ct. 256, 381 A.2d 504 (1978), this Court rejected the argument that a zoning ordinance was not exclusionary as to apartment use because the Borough was not located within the path of onrushing population expansion and there was no demand or need for apartment uses within its boundaries. In so doing, the Court relied on the language of Girsh Appeal, 437 Pa. 237, 245, 263 A.2d 395, 399 (1970):
The simple fact that someone is anxious to build apartments is strong indication that the location of this [municipality] is such that people are desirous of moving in, and we do not believe [the municipality] can close its doors to those people.
This can also be said of mobile home parks.
“Having determined that a particular community is in the path of urban-suburban growth, the present level of development within the particular community must be examined.” Surrick v. Zoning Hearing Board
The appellant contends that of the 360 acres available, only 95 acres or 4.4 per cent are suitable for mobile home park development, but suitability of a site is not a relevant consideration when determining the constitutional validity of an ordinance challenged on the grounds of being exclusionary. Fox Chapel Borough Appeal, supra. “Site suitability is an appropriate consideration going to the type of relief, if any, that should be given to a landowner after he has successfully challenged an ordinance.” (Emphasis added.) Fox Chapel Borough Appeal, supra at 261, 381 A.2d at 507.
An ordinance will be held to be exclusionary where the amount of land zoned as being* available for the use in question is disproportionately small in relation to the percentage of community land available under the zoning ordinance when considered in light of current population growth pressure within the community as well as within the region and in light of the total amount of undeveloped land in the community. Surrick v. Zoning Hearing Board of Upper Provi
The appellant next asserts that the Planning Commission, in rejecting the preliminary plan in 1974, failed to follow the procedures set forth in Section 508
The appellant asserts finally the gravamen of its challenge: that the 1976 amendments were unconstitutional special legislation which were arbitrary, unreasonable and confiscatory in their application in that they were directed at the particular property owned by the appellant. The appellant relies on Commercial Properties, Inc. v. Peternel, 418 Pa. 304, 211 A.2d 514 (1965), and Linda Development Corp. v. Plymouth Township, 3 Pa. Commonwealth Ct. 334, 281 A.2d 784 (1971), where the zoning ordinances in question clearly constituted special legislation enacted for the sole purpose of preventing the lawful use of the land by the respective parties. The appellant here, however, has failed to meet its heavy burden of establishing that the amendatory ordinances were specifically directed against its property.
Zoning classifications are considered to be largely within the legislative body’s judgment, the exercise of which will not be interfered with by the courts except where it is obvious that the classification lacks a substantial relation to public health, safety, morals or general welfare. Clover Hill Farms, Inc. v. Lehigh Township Supervisors, 5 Pa. Commonwealth Ct. 239,
[T]he facts fail to reveal any evidence of discriminatory special legislation directed at the appellant, which owns only 20% of the 325 acres affected. Moreover, Villa Inc.’s predecessor in title had failed to take any action regarding the proposed subdivision for two years prior to the rezoning in 1976 which came about as a result of the recommendations of the local and county planning agencies and community groups. From this, it appears that the rezoning bore some substantial relationship to the general welfare of the community and should not be interfered with as long as this relationship exists. (Citations omitted.)
We therefore, affirm the order of the court below.
Order
And Now, this 3rd day of March, 1981, the order of the Court of Common Pleas of Lackawanna County in the above-captioned matter is affirmed.
The three individuals, who with Louis Ciuccio subsequently became the shareholders of The Villa, Inc., were: Vito Ciuccio, Vincent Piccolini and Louis Piccolini.
Section 2.101(a) of the Subdivision and Land Development Regulations of the Borough of Old Forge requires that:
*224 Preliminary and final plans for all proposed subdivisions of land lying within the limits of the municipality shall be filed with the Commission for approval.
Section 508 of the Code, as in effect in 1974, provided in pertinent part:
All applications for approval of a plat . . . whether preliminary or final, shall be acted upon by the governing*229 body or tile planning agency within such time limits as may be fixed in the subdivision and land development ordinance but the governing body or the planning agency shall render its decision and communicate it to the applicant not later than ninety days after such application is filed.
(1) The decision of the governing body or the planning-agency shall be in writing and shall be communicated to the applicant personally or mailed to him at his last known address not later than five days following the decision;
(2) When the application is not approved in terms as filed the decision shall specify the defects found in the application and describe the requirements which have not been met and shall, in each case, cite to the provisions of the statute or ordinance relied upon. . . .
Section 508(3) provides in pertinent part:
Failure of the governing board or agency to render a decision and communicate it to the applicant within the time and in the manner required herein shall be deemed an approval of the application in terms as presented. . . .
Section 508(4) provides in pertinent part:
When an application for approval of a plat, whether preliminary or final, has been approved ... no subsequent change or amendment in the zoning, subdivision or other governing ordinance or plan shall be applied to affect adversely the right of the applicant to commence and to complete any aspect of the approved development in accordance with the terms of such approval within three years from such approval.
Section 2.201 of the Borough Subdivision Ordinance provides in pertinent part:
e. Within forty (40) days after the meeting at which the preliminary plan is reviewed, the Commission shall notify the subdivider of 'the changes and modifications, if any, which must be incorporated on the final plan before it shall be approved.
f. Approval of the preliminary plan, subject to conditions, revisions, and modifications as stipulated by the Commission, shall constitute conditional Commission of the subdivision (sic) as to the character and intensity of the development and the general layout and approximate dimensions of streets, lots, and other proposed features.
Section 2.301 of the Borough Subdivision Ordinance, which deals with final plans, contains the following language:
a. A final plan with supporting data shall be submitted to the Commission for final approval within three (3) years after Commission action on the preUminary plan. .. .
b. The final plan shall conform in all important respects with the preliminary plan as previously reviewed by the Commission and shall incorporate all modifications and revisions specified by the Commission in its conditional approval of the preliminary plan.. ..
The word “Commission” refers to the Borough Planning Commission.