Appeal of Geiger v. Zoning Hearing Board

LARSEN, Justice,

concurring.

I agree with the majority that North Whitehall Township’s zoning ordinances which prohibit the placement of mobile homes on individual lots within the Township are unconstitutional.

However, I see no reason for the majority to alter the posture of this litigation and derive the conclusion of unconstitutionality “from a different analysis than that employed by the lower courts.” Maj. op. at 234. While the majority might be correct that the Township’s zoning distinction between the placement of mobile homes on individual lots, a prohibited use, and the placement of sectional or modular homes on individual lots, a permitted use, is an arbitrary and capricious distinction, I am uncomfortable with this “different analysis” because nowhere has it been espoused by the parties to this proceeding or by the lower courts. 1 *241 Throughout these proceedings, from the Zoning Hearing Board proceedings to briefs and oral argument before this Court, the Geigers, appellees, have challenged the constitutionality of the zoning ordinances on the grounds that the prohibition of mobile homes on individual lots was a total exclusion of a legitimate use and that this exclusion coupled with allowance of mobile homes in mobile home parks created an arbitrary and capricious classification, which classification did not bear a substantial relationship to the health, safety or welfare of the community. Throughout these proceedings, the appellant Township has responded to this challenge. In its brief before this Court, the Township summarizes its position, stating:

The Geigers have not met their heavy burden of proving that the Township Zoning Ordinance is unconstitutional insofar as it restricts mobile homes to mobile home parks. This regulation is neither exclusionary, arbitrary, unreasonable, nor confiscatory, but rather reflects proper considerations of the public health, safety, and general welfare. The Township recognizes and provides for the usage of “mobile homes” in its Zoning Ordinance; its general limitation of mobile homes to groupings of them in mobile home parks is a legitimate and reasonable regulation of that use.

Based upon this presentation and posture of the litigation, the lower courts have resolved the issue in favor of appellees. The Court of Common Pleas of Lehigh County, per the Honorable David E. Mellenberg, held that:

The law is clear in this Commonwealth that a municipality cannot constitutionally ban a legitimate use of property without proof that such use is harmful to the public health, safety and welfare, (citations omitted) ... [M]obile homes on individual lots are a separate and distinct use from mobile homes in mobile home parks. North Whitehall Township cannot forbid mobile homes on individual lots, a clearly legitimate use, without demonstrating that they are harmful to the health, safety and *242 welfare of the community. There has been no attempt by the Township to do this____

On appeal to Commonwealth Court, the Township argued that the court of common pleas erred in finding that mobile homes on individual lots were a separate and distinct use from mobile homes in parks, a finding which had the effect of shifting the burden to the Township to demonstrate the justifications for such a distinction. In affirming the lower court, President Judge James Crumlish, Jr., writing for the majority, stated:

This is a case of first impression before this Court. The central issue is whether the zoning ordinance, by restricting the use of mobile homes to mobile home parks, unconstitutionally excludes the placement of mobile homes on individual lots.

A constitutional challenge to a zoning ordinance must overcome a presumption of validity by proving that the ordinance entirely excludes a legitimate use; the burden then shifts to the municipality to show that the exclusion reasonably relates to public health, safety and welfare. Beaver Gasoline Co. v. Osborne Borough, 445 Pa. 571 , 285 A.2d 501 (1971).

The Township contends this ordinance is not exclusionary and that “mobile home” as a use is a term of art with a generic meaning. This Court has recognized mobile homes (on individual lots) and mobile home parks as separate and distinct land development uses, (citation omitted) ...

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... North Whitehall Township provides specifically for the development of mobile home parks, yet totally excludes mobile home placement on individual lots. The only provision for mobile homes on individual lots stems from a restrictive special exception to the total ban by the Township. Although not specific, the zoning ordinance effectively excludes mobile homes on individual lots in the municipality by restricting the use of mobile homes to mobile home parks____ We hold that this token special *243 exception is equivalent to a total prohibition of mobile homes on individual lots, a legitimate land use. “When it is demonstrated that an ordinance entirely excludes a facially legitimate use, the presumption of validity is rebutted; and the municipality must then present evidence to establish that its regulation bears a relationship to the public health, safety and welfare.” (citations omitted)

I agree with the lower courts that the Township’s ban on placement of mobile homes on individual lots is equivalent to a total exclusion shifting the burden to the Township to demonstrate the requisite nexus (substantial relationship) between the classification created by its ordinances and the public health, safety and welfare. Moreover, even if we accepted the Township’s argument that there was not a total exclusion sufficient to rebut the presumption of constitutionality and shift the burden to the Township, appellees would still prevail because they presented sufficient, competent evidence to demonstrate that the classification was arbitrary and capricious in that it did not bear a substantial relationship to the public health, safety and welfare. In either event, the burden became the Township’s to demonstrate legitimate justifications for the classifications created by the ordinance and challenged by appellees, and the Township utterly failed to carry that burden.

We granted allocatur in this case primarily to address the “central issue” whether a zoning ordinance which allows mobile homes in mobile home parks but not on individual lots amounts to a total exclusion of a legitimate use. This issue has caused some confusion in the lower courts. 2 In employing a “different analysis” from that of the litigants *244 and the lower courts, the majority has ducked the issue for no apparent reason, and has done little to remedy the confusion. Accordingly, I would affirm the lower courts on the basis of the Commonwealth Court’s opinion in this case.

. The majority observes that the “Zoning Hearing Board has not advanced ... any justification for excluding homes manufactured in one complete section, while permitting homes manufactured in two or more sections....” Maj. op. at 364. This is not surprising since the Geigers, appellees, did not challenge the validity of the Township's distinction between mobile homes and sectional homes, and it is unfair, therefore, to penalize the Township for failing to advance justifications for this particular classification or distinction. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255 , 322 A.2d 114 (1974).

. See, e.g., Meyers v. Board of Supervisors, 38 Pa.Cmwlth. 578 , 394 A.2d 669 (l978); Environmental Communities of Pennsylvania, Inc. v. North Coventry Township, 49 Pa.Cmwlth. 167 , 412 A.2d 650 (1980); Board of Supervisors v. Moland Development Co., 19 Pa.Cmwlth. 207 , 339 A.2d 141 (1975); Whitemarsh Township v. Kravitz, 39 Pa.Cmwlth. 306 , 395 A.2d 629 (1978). But cf., Gravatt v. Borough of Latrobe, 44 Pa.Cmwlth. 475 , 404 A.2d 729 (1979), appeal dismissed 491 Pa. 424 , 421 A.2d 210 (1980) and County of Fayette v. Holman, 11 Pa.Cmwlth. 357 , 315 A.2d 335 (1973).