DocketNumber: Appeal, 4
Judges: Bell, Musmanno, Jones, Cohen, Eagbn, O'Brien
Filed Date: 4/30/1963
Status: Precedential
Modified Date: 10/19/2024
Opinion by
This is an appeal from an order of the Court of Common Pleas of York County which affirmed a decision of the York Township Zoning Board of Adjustment (Board) refusing to grant to Dale D. Anstine and Vivian D. Anstine (appellants) a variance from the terms of the York Township Zoning Ordinance of 1960.
The appellants purchased approximately two acres of land in York Township on December 19, 1959. At the time of purchase, the land was improved with a two-story block building, formerly used as a chicken house and hog pen. On February 2, 1960, York Township (Township) adopted a zoning ordinance, effective February 15, 1960, designating the zone in which appellants’ land was located as an “R-Residential” district. This ordinance prohibited the location of trailers
On February 27,1960, the appellants placed on their land a mobile-home or trailer and used it as a dwelling house. They applied to the Board on October 24, 1961 for a variance to continue to use and occupy the trailer or mobile-home as a residence and to improve it by placing it on a concrete foundation and adding to its exterior a patio, awning and other decorative features. A hearing was held and testimony was taken. The variance was refused because, according to the Board, appellants had failed to show that the ordinance would work an unnecessary hardship upon them. Appellants then appealed the Board’s decision to the Court of Common Pleas of York County and that court, without taking testimony, sustained the refusal of the variance
The sole issue before this Court is whether this zoning ordinance operates in such an arbitrary, capricious, discriminatory or confiscatory manner so as to unconstitutionally deprive the appellants of the use of their property. Section 704.1 of the York Township zoning ordinance of 1960 states: “Insofar as the provisions of this ordinance are concerned, within an R-Residential District a trailer shall he considered as a particular type of dwelling use, and shall be located only within a permitted trailer camp. In all other districts, a trailer shall he considered as a single family detached dwelling, and it shall conform to all regulations applicable to a single family dwelling for the district in which it is located.” (Emphasis supplied) Section 301.1 of the ordinance sets forth the use regulations within an R-Residential district as: “A Building may be erected or,used, and a lot or land may be used or occupied for any of the following purposes, and no other: 1. Single Family Detached or Semi-Detached Dwelling.” The effect of such ordinance provisions is to permit the location of a trailer or mobile home on single lots anywhere within the Township, except in an “R-Residential” district where they may be located only in trailer camps. Trailer camps may be located any where, in the township, provided certain conditions are met.
The burden of proving clearly and unmistakably the unconstitutionality of a legislative enactment is upon the person so asserting: Best v. Zoning Board of Adjustment, 393 Pa. 106, 141 A. 2d 606; Archbishop O'Hara's Appeal, 389 Pa. 35, 131 A. 2d 587; Loomis v. Philadelphia School District Board of Education, 376 Pa. 428, 103 A. 769; Flynn v. Horst, 356 Pa. 20, 51 A.2d 54. Accompanying this burden is the rule that ". . . where the constitutionality of zoning ordinances has been attacked, we have presumed that the munici
Section 101 of the township ordinance provides, inter alia: “This ordinance is enacted for the purpose of
The burden was on appellants to show that the maintenance of their mobile home, improved as proposed, would not be- inimical to the “health, safety, morals and general welfare of the- inhabitants of York Township . . . .” The record shows that appellants’ mobile home is S' wide and 41' long and has, accordingly, 328 square feet of living space; a housing construction expert testified that the average conventional-dwelling house contains 720 square feet, but he classified appellants’ dwelling as “a small home, but not an extremely small one.” The interior height of their dwelling is T 2" and there is a structural steel frame with an exterior siding of aluminum; an expert witness compared the construction of the frame of appellants’ dwelling to that of a conventional home and declared them to be structurally similar. Likewise, the interior plywood covering on the walls and floor of appellants’ dwelling and the insulation between the exterior covering and the interior covering are basically similar to the building materials which would be used in a conventional dwelling house. The living space within the mobile home consists of a living room-dining room, a kitchen -with a double sink, hot and cold running water, a four-burner gas stove, a bathroom with a regular size bath tub, lavatory, commode and hot and cold running water. Appellants’ two children sleep in the 8' x 8' bedroom and appellants sleep on a roll-out bed in the adequately furnished living room. The mobile home- is equipped with city water facilities, electricity, telephone service, a septic tank located beneath
Certain conclusions flow from this evidence. The question of what best serves the public interest is primarily a question for the decision of the appropriate legislative body in a given situation, but whether a zoning ordinance operates in an arbitrary, capricious, discriminatory or confiscatory manner as to the property in question calls for judicial determination: Bilbar Construction Co. v. Easttown Twp. Board of Adjustment, supra. In our opinion, a review of the record shows that the refusal to grant appellants permission to improve their mobile home is arbitrary and discriminatory. Only single family dwellings are allowed within the R-Residential District and, if appellants are permitted to go forward with their improvements, the resulting structure clearly would be a single family dwelling, albeit a small dwelling, within the definition of the ordinance. Their plans involve the removal of the mobile home’s undercarriage to which the wheels are attached and the bolting of the structure to a concrete block foundation and the proposed addition of a concrete patio covered by an aluminum awning clearly creates a fixed rather than a mobile structure. The
In every other zoned district in York Township, a trailer or a mobile-home is to be considered a single family dwelling house merely by fiat of the ordinance's definition. It is arbitrary, therefore, to deny this status to a mobile home in an R-Residential area which in fact is no longer able to be drawn by a vehicle and to a mobile-home rendered structurally immobile. There is in this ordinance no restraint on the use of trailers or mobile-homes other than by way of definition and there is established no minimum square footage for all single family dwelling houses as has been held to be a valid zoning standard in this Commonwealth: Lower Merion Township v. Gallup, 158 Pa. Super. 572, 46 A.2d 35. On many occasions, a mobile home has been held, under the circumstances therein existing, to be a "dwelling" by the courts of this Commonwealth: Palumbo Appeal, 166 Pa. Super. 557, 72 A. 2d 789; Commonwealth v. McLaughlin, 168 Pa.Super. 442, 78 A. 2d 880; Commonwealth v. Helmuth, 73 Pa. D. & C. 370; Hunter v. Richter, 9 Pa. D. & C. 2d 58; Hickory Township v. Wooddell, 4 Mercer Co. L.J. 282. In the case at bar, we deem it most arbitrary to apply the classification of "trailer" to a structure which, when improved, will not be in fact a "trailer" as defined, expressly or impliedly, by the ordinance or by common sense.
The Township was presumptively acting within -its delegated power when it classified mobile-homes differently than conventional homes. The record before us,
Assuming that this zoning classification is unrelated to standards generally considered, such as- the public health, morals or safety, we must consider its relation to the “general welfare” of York Township. The only basis upon which the Township could justify the' exclusion of mobile homes from this área on' the ground of “general welfare” would bé that the presence of this mobile home would aesthetically injure the
The Township argues that there is a presumption that the ordinance in question was enacted to preserve the beauty and property values of York Township. Thus, the Township would have us presume that the style or design of a mobile home per se detracts from the aesthetic characteristics of the community and, accordingly reduces neighboring property values and that a conventional dwelling house, no matter its unattractiveness, will not have the same effect. This is clear error. We are bound to look no further than the record before us. This record does not reveal whether appellants’ requested improvement will or will not enhance the aesthetic characteristics of the neighborhood and the only evidence relating to the concept of aesthetics is the testimony of a realtor to the effect that the improvement of appellants’ dwelling would hide an existing concrete block structure used as a hobby shop and to that extent aesthetically enhance the area. An expert testifying for appellants stated that the improved structure would increase the value of appellants’ property and that it “will tend to make it [the immediate area] more óf a residential area”. In effect, this testimony amounted to an expert’s opinion of the favorable impact of this property use on this immediate neighborhood. A party protesting the permit testified that he had heard that the value of adjoining properties had depreciated $2,000 since the placing of the mobile home on appellants’ property. This is not competent evidence that the improvement of such mobile home will adversely affect the property values of the entire com-
It has often been held that zoning ordinances must be enacted in accord with a comprehensive plan whereby the municipality may develop in an orderly manner (Eves v. Zoning Board of Adjustment, 401 Pa. 211, 164 A. 2d 7) and that the provisions of an ordinance must be pertinent to the attainment of the objectives of the plan or be invalid (Whitpain Township v. Bodine, supra; Archbishop O'Hara's Appeal, supra; Menger v. Pass, 367 Pa. 432, 80 A. 2d 702; Swade v. Springfield Township Zoning Board of Adjustment, 392 Pa. 269, 140 A. 2d 597; Schmalz v. Buckingham Township Zoning Board of Adjustment, supra). A reading of the York Township ordinance of 1960 shows that the Township legislative body envisions that in the future the designated "R-Residential" district will remain agricultural with single family detached or semi-detached dwellings. In Schmalz v. Zoning Board of Adjustment, supra, at p. 302, it was stated: "We must determine the reasonableness of the regulation as it applies to conditions now existent." The record shows that the area presently surrounding appellants' property is a conglomeration of commercial, agricultural and residential properties. To the east and south of appellants' land is farm land upon which corn and wheat are grown. To the west are three properties: (1) land improved with a single family dwelling and truck garage upon which a baking business is conducted; (2) land upon which a dwelling is located together with a parking lot for
We are of the opinion that Section 704.1 of the York Township Zoning Ordinance of 1960 places an unreasonable, arbitrary and discriminatory restriction on appellants’ use of their property. The record does not show that this ordinance as it relates to this specific property is a proper exercise of the Township’s power to- regulate, through zoning, iii protection of public health, morals and safety or general welfare of the community.
The order of the court below is reversed.
The terms “trailers” or “mobile-homes” are used interchangeably in this opinion.
The iustant ruling in no wise determines that aesthetics is or is not a factor in zoning.