Delaware County Investment Corp. v. Zoning Hearing Board

Opinion by

Judge Wilkinson,

Appellant, the owner of approximately 38.735 acres of land in Middletown Township, Delaware County, here appeals from the October 10, 1974 order of the Delaware County Court of Common Pleas affirming the appellee’s denial of appellant’s variance application. The rejected variance application sought reduction in minimum lot size from 20,000 square feet to 5,000 square feet, increased maximum building coverage limits on the lots, reduction in minimum set backs for front, side and rear yard, reduction in minimum side yard and reduction in the width of the building line, all in conjunction with appellant’s plans to develop the land as a mobile home park.

Originally, appellant applied on March 11, 1971, to the Township Board of Supervisors for a change of zoning from R-2, single-family detached dwellings, to a mobile-home classification. This request was denied on April 12, 1971. On April 29, 1971, proceeding under the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. 805, as amended, 53 P. S. §10101 et seq., appellant submitted to the supervisors an application for development including a proposed amendment to the zoning code, which at that time prohibited trailer camps. This application was also rejected; however, on June 14, 1971, the Township deleted the trailer camp prohibition from its zoning ordinance.

On July 2, 1971, appellant appealed from the supervisors’ rejection to the Delaware County Court of Common Pleas. The supervisors filed a motion to quash, which was granted by the court.¹

On November 30, 1972, appellant submitted a new application for a variance to the Zoning Hearing Board, from which the instant controversy arises. Appellant questions both the denial of the variance and the constitutionality of the zoning ordinance.

Our scope of review on an appeal from the denial of a variance where the court below took no additional testimoney is limited to whether the Zoning Hearing Board abused its discretion or committed an error of law. Soble Construction Company v. The Zoning Hearing Board of the Borough of East Stroudsburg, 16 Pa. Commonwealth Ct. 599, 329 A.2d 912 (1974); Grace Building Co., Inc. v. Hatfield Township, 16 Pa. Commonwealth Ct. 530, 329 A.2d 925 (1974).

Appellant contends that the zoning ordinance is unconstitutional in that it excludes mobile homes from the Township. Appellant is not aided in this argument by the Township’s earlier mobile home prohibition because the prohibition was repealed prior to the filing of the instant application. There being no municipality-wide prohibition, the presumption of the ordinance’s validity persists. Colonial Park for Mobile Homes, Inc. v. Zoning Hearing Board, 5 Pa. Commonwealth Ct. 594, 290 A.2d 719 (1972). Mobile homes are permitted in any residential district in Middletown Township. Appellant simply failed to carry its heavy burden of proof on this contention.

We similarly find applicant has failed to prove its assertion that Middletown Township’s zoning unconstitutionally denies mobile home owners the right to travel. The cases cited by appellant concerning regulation of immigration, residency requirements, and limitations on population growth are inapplicable.

Finally, a review of the record fails to convince us that appellee acted improperly in denying the appellant’s variance application. To receive a variance, an applicant must prove that the zoning ordinance resulted in burdening his land with an unnecessary hardship unique to it, and that the variance would not adversely affect the public health, safety or welfare. Abrams v. The Zoning Hearing Board of the Borough of Danville, 21 Pa. Commonwealth Ct. 284, 344 A.2d 734 (1975) ; Township of Haverford v. Spica, 16 Pa. Commonwealth Ct. 326, 328 A.2d 878 (1974). A variance should only be granted in exceptional circumstances. Drop v. Board of Adjustment, 6 Pa. Commonwealth Ct. 64, 293 A.2d 144 (1972).

The record clearly supports appellee’s finding of fact 11:

“There are not any unique physical circumstances or conditions peculiar to the property that would prevent or prohibit its development in accordance with R-2 20,000 square foot zoning.”

At least three of appellant’s own witnesses, Gilchrist, Horne, and Asbury testified in agreement with the finding. Again, the appellant has failed to carry his burden of proof.

Accordingly, the order of the court below is affirmed.

1 . Appellant labels Judge Catania’s order of April 7, 1972, as a remand. If correct, this would preserve appellant’s status to object to Middletown Township’s Zoning Ordinance as it stood at the date of appellant’s original application. However, Judge Catania’s order, in response to a motion to quash, clearly reads: “it is hereby ORDERED, ADJUDGED and DECREED, that the said appeal be and the same is hereby quashed.”