On December 28th, 2011, the Court of Common Pleas of Chester County, Pennsylvania upheld the decision of a township denying a curative amendment of a zoning ordinance challenged by an appellant.

Appellant, Glen Loch, challenged West Whiteland Township’s 1986 Zoning Ordinance on the premise that the zoning ordinance effects a de facto total exclusion of mobile home parks in the Township and that the ordinance is invalid because it fails to provide a fair share of the Township’s land for mobile home park development.

Glen Loch made its de facto argument by stating that the ordinance appeared to permit the use of mobile homes; however under no circumstances could the use be accomplished.  The relevant area of land in controversy was situated within the R-4 district of the Township.  In 1986, the Township’s Zoning Ordinance permitted mobile home parks within the R-4 zoning district, and at which time there was still significant available space for development.

Glen Loch argued that there was no land available when the 1986 Zoning Ordinance was enacted, however the Township argued, and the Court agreed, that while there was land in the R-4 district that was in the process of development, it was not actually developed and the time of the enactment, and therefore was “undeveloped” land.  To support its holding, the Court cited to Kaiserman, stating: “[I]f a district containing available land has been zoned to permit a particular use, one may not later base a claim that the use is excluded on the fact that the land has been used for another purpose instead.”  Kaiserman v. Springfield Township, 348 A.2d 467, 471 (1975).  There was substantial record evidence to support the Township’s contention that the 1986 Zoning Ordinance did not effect a de facto exclusion of mobile homes in West Whiteland.

With regard to the second inquiry of “fair share”, the Court “focused” on whether the community in question is a logical area for population growth and development.  Next, if the community is in the path of growth, the present level of development must be examined.  Lastly, if the community which is located in the path of growth us not already highly developed, the reviewing body must determine if the zoning ordinance has the practical effect of unlawful excluding the legitimate use in question.”  Crystal Forest Associates, LP v. Buckingham Township Supervisors, 872 A.2d 206, 211 (Pa Cmwlth. 2005).  Glen Loch bore the burden of establishing that the Township was not highly developed, and it was their own evidence which established that the Township was in fact highly developed and therefore incapable of failing to provide its “fair share” of land for mobile homes.

As such, the 1986 Zoning Ordinance, neither effected a de facto exclusion of mobile homes, nor did it fail to provide its “fair share” of land for mobile homes as the land in the R-4 district after 1986 was developed for other permitted uses.  The case is reported at 59 Chester County Law Reporter 22 (2012).  Glen Loch has filed an appeal of this matter to the Commonwealth Court.