Willits Woods Associates v. Zoning Bd. of Adjustment of City of Philadelphia

• Citation: 587 A.2d 827,138 Pa.Cmwlth. 62
• Decision Date: 08 April 1991
• Docket Number: No. 1202,1202
• Parties: WILLITS WOODS ASSOCIATES, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA and City of Philadelphia and Ashton Square Civic Association, Appellees. C.D. 1990.
• Court: Commonwealth Court of Pennsylvania

Page 827

587 A.2d 827

138 Pa.Cmwlth. 62

WILLITS WOODS ASSOCIATES, Appellant, v. ZONING BOARD OF ADJUSTMENT OF the CITY OF PHILADELPHIA and City of Philadelphia and Ashton Square Civic Association, Appellees.

No. 1202 C.D. 1990.

Commonwealth Court of Pennsylvania.

Argued Dec. 7, 1990.

Decided Feb. 12, 1991.

Reargument Denied April 8, 1991.

Stanley A. Uhr, with him, Louis J. Carter, Philadelphia, for appellant.

Marjorie Stern Jacobs, Deputy City Sol., and Stanley R. Krakower, Philadelphia, for appellees.

Before COLINS and SMITH, JJ., and BARBIERI, Senior Judge.

COLINS, Judge.

Willits Woods Associates (appellant) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court), rejecting appellant's contention that the City of Philadelphia Zoning Code (Code) is unconstitutional in that it excludes mobile home park development.

Appellant initially appealed to the trial court from a decision of the Zoning Board of Adjustment of the City of Philadelphia (Board) that affirmed the Department of Licenses and Inspections (Department) in denying appellant a permit to develop a 217 unit mobile home park on a site that is split-zoned as follows: primarily "L-2" (limited industrial) and partially "R-4" (residential).

Because of delay by the City of Philadelphia (City) in responding to appellant's initial appeal and the Board's delay in transmitting the record, the trial court found in appellant's favor without addressing appellant's constitutional challenge of the Code. The Board, along with the Ashton Square Civic Association, intervening appellee, appealed the trial court's decision to this Court. On December 16, 1987, we reversed the trial court's procedural disposition and remanded the case to the court of common pleas to decide the constitutional issue. ¹ After the matter was briefed and argued without the taking of additional testimony, the court of common pleas, on May 11, 1990, dismissed the appeal on the basis that appellant had not met its "burden of proving de jure exclusion of a mobile home park by the zoning ordinance." An appeal from the trial court's order is now before us.

The pivotal issue to determine is whether appellant met its burden of proving the Code unconstitutional by reason of the alleged de jure exclusion of any reference to a mobile home or trailer park district. Where no additional testimony is taken by the trial court, this Court's scope of review is limited to determining whether the Board abused its discretion, erred as a matter of law, or made findings of fact unsupported by substantial evidence. Williams v. Salem Township, 92 Pa.Commonwealth Ct. 634, 500 A.2d 933 (1985), petition for allowance of appeal denied, 516 Pa. 615, 531 A.2d 781 (1987). In the present case, we find no evidence of either.

Appellant argues that no Code provision refers to mobile homes or mobile home parks or provides for their development, and that the only Code classification which arguably could be considered to refer to mobile homes is the provision referring to "trailer camps." Nevertheless, appellant maintains that even if included within the "trailer camp" classification, mobile home park developments would still be effectively excluded because no trailer camp districts have been specifically designated in Philadelphia. Appellant further contends that if, on the other hand, mobile home parks are not included within the definition of trailer camps, then the Code totally excludes them as permitted uses. On the basis of this argument, appellant claims to have proven both the Code's unconstitutionality in its de jure exclusion of mobile home park development, as well as the unconstitutionality of the Board's reliance on the Code in denying the requested permit, especially in the absence of showing that a mobile home park would be detrimental to the public health, safety and welfare. Rectifying this unconstitutionality would, according to appellant, require granting its application for a permit to develop the proposed mobile home park.

Appellees counter by emphasizing that the Code does not specifically prohibit either a mobile home use or a mobile home park. Moreover, the fact that the Code does not contain a specific provision addressing the proposed use is not, as appellees point out, in and of itself a basis for finding an unconstitutional exclusion of that use. See Appeal of Shore, 524 Pa. 436, 573 A.2d 1011 (1990). In support of this contention, appellees note that, although seven zoned districts (R-11, R-11A, R-12, R-13, R-20, RC-1 or RC-6), permit the construction of a mobile home park as a "group dwelling," appellant never applied for a permit in these areas, but only for a site zoned "L-2" (limited commercial) that does not permit any residential use. Moreover, appellees contend that the Department's notice denying appellant's permit request indicated that appellant was actually proposing construction of 217 structures on one lot, not separate lots, and that these structures would be "permanent or long term residences," rather than "temporary vehicular arrangements" as intended by the term, "mobile trailer," defined in ...