Opinion
No. 45 C.D. 2012
11-29-2012
Appeal of Glen Loch Two Associates, L.P. from the Decision of the Board of Supervisors of West Whiteland Township Dated March 30, 2011 Appeal of: Glen Loch Two Associates, L.P.
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE MARY HANNAH LEAVITT, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
In this factually complex land use appeal, Glen Loch Two Associates, L.P. (Applicant) asks whether the Board of Supervisors of West Whiteland Township (Supervisors) erred in denying its substantive validity challenge to the West Whiteland Township Zoning Ordinance of 1986 (zoning ordinance) and its proposed curative amendment. Applicant asserts the zoning ordinance effects a de facto total exclusion of mobile home parks in the Township. Alternatively, it contends the Township does not provide for its "fair share" of mobile home park development. Applicant also argues the trial judge who presided over Applicant's appeal of the Supervisors' decision should have recused himself. Upon review, we affirm.
I. Factual and Procedural Background
Applicant owns approximately 58.461 acres of land in West Whiteland Township (Township), which is located adjacent to Route 202 and Route 30 and is bisected by Dunwoody Drive (subject property). The subject property, which is comprised of two tax parcels, lies in an Office Laboratory (OL) zoning district.
In 2005, the Supervisors granted final land development approval to develop the subject property for a large office complex. The final land development plan was recorded; however, the office complex was never built. Applicant now seeks to develop the subject property for a 199-unit mobile home park, which is not a permitted use in the OL zoning district.
In May 2010, Applicant filed a substantive validity challenge to the zoning ordinance, asserting it effected a de facto total exclusion of mobile home parks. Applicant further alleged the Township did not provide a "fair share" of its land for mobile home parks. Applicant also filed a request for a curative amendment, which would change the zoning of the subject property from OL to R-4, a zoning district that permits mobile home park development. Thereafter, the Supervisors conducted a series of five hearings on Applicant's substantive validity challenge and proposed curative amendment.
After the hearings, the Supervisors rejected Applicant's substantive validity challenge in an extensive 50-page decision containing 179 findings of fact.
More specifically, the Supervisors determined that under the current zoning ordinance, a mobile home park may only be built in an R-4 zoning district. The Supervisors stated that mobile home park development was first restricted to the R-4 zoning district by the 1986 zoning ordinance.
The Supervisors found that, at the time the 1986 zoning ordinance was enacted, there were three areas zoned R-4 that contained land available for the development of mobile home parks. Additionally, the Supervisors noted there is an existing mobile home park within an R-4 zoning district. Because there was vacant, developable land in three areas of the R-4 zoning district at the time the zoning ordinance was enacted, the Supervisors determined the zoning ordinance did not effect a de facto total exclusion of mobile home parks.
As to Applicant's "fair share" challenge, the Supervisors determined Applicant did not meet its burden under the three-part test used to analyze such a challenge, which is set forth in our Supreme Court's seminal decision in Surrick v. Zoning Hearing Board of Township of Upper Providence, 476 Pa. 182, 382 A.2d 105 (1977).
For these reasons, the Supervisors denied Applicant's substantive validity challenge and curative amendment request. Applicant appealed to the Court of Common Pleas of Chester County (trial court).
Without taking additional evidence, the trial court affirmed. This appeal by Applicant followed.
II. Issues
On appeal, Applicant asks whether the Supervisors erred in: (1) making factual findings that lack record support; (2) concluding the zoning ordinance does not effect a de facto total exclusion of mobile home parks; (3) determining that land already approved for another use, which was partially developed with that use at the time the challenged ordinance was enacted, was "available" for mobile home park development; and, (4) concluding the Township satisfied its obligation to provide a "fair share" of its land for mobile home park development. Additionally, Applicant contends the trial judge who presided over Applicant's appeal of the Supervisors' decision abused his discretion by failing to recuse himself.
Where, as here, no additional evidence was presented after the Supervisors' decision, our review is limited to determining whether the Supervisors committed an abuse of discretion or an error of law. Atherton Dev. Co. v. Twp. of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011).
Although Applicant sets forth five issues in the Statement of Questions Involved section of its brief, Applicant's argument section consists of three main issues. Our discussion of the issues raised by Applicant mirrors that set forth in the argument section of Applicant's brief.
III. De Facto Exclusion of Mobile Home Parks
A. Contentions
Applicant first argues Pennsylvania law is well-settled that a Township's total exclusion of mobile home parks is unconstitutional. Under Pennsylvania law, it asserts, in order to determine whether a zoning ordinance makes adequate provision for a particular use, the allowance for that use must be viewed as of the date the challenged ordinance was enacted. Therefore, the Township's allowance for mobile home parks must be viewed as of September 30, 1986, the date the current zoning ordinance was enacted.
Applicant contends the current zoning ordinance facially permits mobile home park development only in the R-4 zoning district. At the time the current zoning ordinance was enacted, Applicant argues, there was no land within the R-4 district that was available for mobile home park development. Rather, all the land in that district was either already developed, or in the process of being developed, for uses other than mobile home parks.
Applicant asserts it is undisputed that the R-4 district is fully built out and that there is presently no land within the Township that is available for mobile home park development. Applicant also argues it is undisputed that at the time the current zoning ordinance was enacted, there were only three areas zoned R-4 - the Whiteland Crest Area, the Exton Station Area and the Lewis Lane Area. Applicant argues the trial court upheld the Supervisors' determinations that at the time the current zoning ordinance was enacted, each of these three R-4 areas had land available for mobile home park development. However, Applicant contends, the Supervisors' findings are flatly contrary to the uncontroverted record.
In particular, Applicant argues the Supervisors erred in determining that when the current zoning ordinance was enacted, there was anywhere from 18 to 25 acres within the Whiteland Crest Area that was available for mobile home park development. To the contrary, Applicant contends, the record reveals that at the time the current zoning ordinance was adopted, all the land in the Whiteland Crest Area was already developed, see Reproduced Record (R.R.) at 543a, 565a, 568a-571a, 592a, and there is no evidence to the contrary.
Further, as to the Exton Station Area, Applicant asserts, contrary to the Supervisors' findings, most of the land within this area was already developed, or in the process of being developed with the "Bonnie Blink/Exton Station" Planned Residential Development (PRD). Applicant maintains both the Supervisors and the trial court erred in concluding that land that was part of this PRD, which the Supervisors approved before the adoption of the current zoning ordinance, and which was partially developed, was available for mobile home park development at the time the current zoning ordinance was adopted. Applicant argues this determination is directly contrary to this Court's decision in Stahl v. Upper Southampton Township Zoning Hearing Board, 606 A.2d 960 (Pa. Cmwlth. 1992). See also Heritage Bldg. Grp., Inc. v. Plumstead Twp. Bd. of Supervisors, 833 A.2d 1205 (Pa. Cmwlth. 2003) (open land used for agricultural purposes must be considered as developed land).
Applicant also contends that, contrary to the determinations below, the Lewis Lane Area was not large enough to accommodate a mobile home park. Specifically, it argues the current zoning ordinance requires a mobile home park to be located on a minimum five-acre lot, and the zoning maps presented at the hearings reveal the Lewis Lane Area contained less than five acres.
Applicant further asserts there is a 13-unit mobile home park in the Township known as Gilbert's Mobile Home Park. It argues Gilbert's Mobile Home Park was constructed prior to the adoption of the Township's first zoning ordinance and exists as a lawful nonconforming use. R.R. at 73a-74a, 202a, 592a. Under Pennsylvania law, Applicant argues, a use that exists as a nonconforming use may not be considered in determining whether a zoning ordinance effects a total exclusion of that use. See Twp. of Paradise v. Mount Airy Lodge, Inc., 449 A.2d 849 (Pa. Cmwlth. 1982). Therefore, Applicant maintains, the fact that the 13-unit nonconforming Gilbert's Mobile Home Park exists in the Township does not mean the zoning ordinance does not effect a total de facto exclusion of mobile home parks.
Initially, the Supervisors assert Applicant waived any challenge as to whether the Supervisors' findings are supported by substantial evidence. Specifically, they claim that in its notice of land use appeal to the trial court, Applicant raised a general challenge to the Supervisors' findings, but it did not specifically identify the challenged findings. Further, the Supervisors contend, the fact that Applicant subsequently filed a brief with the trial court that challenged specific findings does not cure the defect in Applicant's notice of land use appeal.
Our review of Applicant's notice of land use appeal, see Reproduced Record (R.R.) at 720a24a, reveals that, although Applicant did not identify by number the specific findings it was challenging, Applicant clearly explained the bases for its appeal. To that end, Applicant's notice of land use appeal contains several paragraphs that specifically outline its contentions that the Supervisors' essential findings are contrary to the uncontroverted evidence. R.R. at 722a. Additionally, Applicant attached a copy of the Supervisors' decision to its notice of land use appeal, and it asserted "the [Supervisors'] findings of fact contained in the [d]ecision were not supported by substantial evidence and were contrary to the uncontroverted evidence[.]" R.R. at 723a.
In Summit Township Board of Supervisors v. Summit Township Zoning Hearing Board, 571 A.2d 560 (Pa. Cmwlth. 1990), we held that an appellant's notice of land use appeal, which incorporated by reference a zoning board's findings and conclusions and asserted they were not supported by record evidence and were erroneous as a matter of law, was sufficient to specify the grounds for appeal. A similar result is warranted here, and we reject the Supervisors' argument to the contrary.
B. Analysis
1. General Principles
Zoning ordinances in Pennsylvania enjoy a presumption of constitutionality and validity, and the party challenging one bears a heavy burden of proving otherwise. Interstate Outdoor Adver., L.P. v. Zoning Hearing Bd. of Warrington Twp., 39 A.3d 1019 (Pa. Cmwlth. 2012). In order to overcome this presumption of constitutionality, a challenger must show the ordinance totally excludes an otherwise legitimate use. Id. Unless the challenger proves the ordinance in question completely or effectively excludes a legitimate use, the challenger cannot carry its burden. Id. To prove a total or effective exclusion of a permitted use, the challenger can show the ordinance is either de jure or de facto exclusionary. Id.
A de jure exclusion exists where an ordinance, on its face, totally bans a legitimate use. Id. A de facto exclusion exists where an ordinance permits a use on its face, but when applied, acts to prohibit the use throughout a municipality. Id.
If a challenger is able to establish the ordinance excludes the use in question, the burden shifts to the municipality to show the zoning ordinance bears a substantial relationship to public health, safety and welfare. Macioce v. Zoning Hearing Bd. of Borough of Baldwin, 850 A.2d 882 (Pa. Cmwlth. 2004).
2. Supervisors' Determinations
Here, the Supervisors determined that, as of 1986, the date of enactment of the current zoning ordinance, there was land available in the R-4 zoning district for mobile home parks. The Supervisors found guidance in this Court's decision in Montgomery Crossing Associates v. Township of Lower Gwynedd, 758 A.2d 285 (Pa. Cmwlth. 2000), a case in which we rejected an argument that an ordinance effected a de facto exclusion of mobile home parks. There, speaking through Judge Leadbetter, this Court stated (with emphasis added):
[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. In other words, there is no ongoing obligation on the part of the township to rezone for mobile home parks because the vacant land in the [zoning district that permitted mobile home parks] was developed for apartments. 'To allow open ground in a township to be used for any purpose whatever solely because little or no undeveloped land remains in areas properly zoned for that purpose would be the antithesis of that sound planning which is the rationale for all zoning.' Kaiserman v. Springfield Township, 348 A.2d 467, 471 (Pa. Cmwlth. 1975). As there was substantial support in the record for the [b]oard's finding that mobile homes were not excluded from the district, common pleas should not have overturned that finding.Id. at 290-91.
In rejecting Applicant's challenge that the zoning ordinance effected a de facto total exclusion of mobile home parks, the Supervisors first determined Gilbert's Mobile Home Park presently exists as a "legal, conforming use" in the R-4 district. Supervisors' Dec., 3/30/11, Finding of Fact (F.F.) No. 94 (emphasis added). As a result, the Supervisors stated that Applicant's argument that the zoning ordinance effected a de facto exclusion of mobile home parks was problematic. See Supervisors' Dec. at 36 ("[I]t is difficult for Applicant to make the argument that there is a total exclusion of mobile home parks as one is clearly in lawful existence today within the R-4 district in which the use has been permitted since 1986.")
Further, the Supervisors determined there was land available for the development of mobile home parks in the R-4 district adjacent to Gilbert's Mobile Home Park, stating:
According to the record, this R-4 area comprises eighteen (18) to twenty (20) acres, the existing mobile home park consists of about three (3) acres, leaving approximately fifteen (15) to seventeen (17) acres available for mobile home park development, which only required a minimum of five (5) acres under the 1986 Zoning Ordinance. One needs only to examine the aerial photography and zoning maps submitted into the record to deduce that in fact this portion of the R-4 district remained undeveloped woodland and open fields during the relevant time period in 1986.Supervisors' Dec. at 37.
The Supervisors also rejected Applicant's argument that this land was not available for mobile home park development in 1986 on the ground that a tentative plan for construction of townhomes for a portion of this property (the Bonnie Blink/Exton Station PRD) was approved prior to the adoption of the 1986 zoning ordinance. In particular, the Supervisors found that, in August 1979, a plan was submitted for the "Bonnie Blink/Exton Station" PRD project, which was to be completed in four phases. In May 1980, the Supervisors approved the tentative plan for the Exton Station PRD. About a year later, the Supervisors granted final plan approval for phase one. In September 1986, the Supervisors approved the final plan for phase two of the Exton Station PRD. At this same time, the Supervisors adopted the 1986 zoning ordinance, and a portion of what was to become part of the Exton Station PRD, was rezoned R-4. "However, at that time, at best, that portion had only received tentative plan approval." Supervisors' Dec. at 37 (emphasis added). The Supervisors determined that developable land existed in this portion of the R-4 district at the time the 1986 zoning ordinance was adopted.
To that end, the Supervisors determined the third phase of the Exton Station PRD did not receive final approval until 1988, and the fourth phase did not receive final approval until 1990. The Supervisors also determined that financial security for the fourth phase, a portion of which was actually constructed in the R-4 district, was not approved until late-1991, over five years after enactment of the 1986 zoning ordinance and construction did not begin until after that time.
The Supervisors also determined that experts for both the Township and Applicant agreed that land is "developable" if it is not physically developed, even if the land is under final development approval. Supervisors' Dec. at 37. As such, the Supervisors determined this area could have been developed for mobile home park use, if the developer so desired.
In addition, the Supervisors determined that two other areas, which were zoned R-4, also contained land available for development of mobile home parks in 1986—the Morstein Mobile Home Park Area (referred to by Applicant as the Lewis Lane Area) and the Whiteland Crest Area.
As to the Morstein Mobile Home Park Area, the Supervisors found that, despite bearing the burden of proof, Applicant did not present any competent evidence that this area lacked sufficient acreage for a mobile home park development. Instead, Applicant presented only a statement by its counsel that the area is less than five acres, which the Supervisors did not find "probative." Supervisors' Dec. at 38. Because Applicant, who bore the heavy burden of proof here, did not present competent evidence to the contrary, the Supervisors presumed this area contained sufficient minimum acreage to allow for mobile home park development.
The Supervisors further found it was undisputed that at the time the current zoning ordinance was enacted, the Morstein Mobile Home Park was lawfully in existence as a permitted use. To that end, the Supervisors found, as of 1985, about 20 mobile homes existed at that location, and aerial photographs taken in 1990 and 1993 showed undeveloped lands in the Morstein Mobile Home Park Area. In 1990, the Morstein Mobile Home Park contained only four mobile homes. In 1993, not one mobile home existed on the Morstein Mobile Home Park, and the area then became undeveloped. The area was later developed for office use and, in 1998, it was rezoned OL to accommodate that use. However, "not only was the Morstein Mobile Home Park in lawful existence when the property was zoned R-4 at the time the 1986 [z]oning [o]rdinance was enacted, and still contained mobile homes, the area plainly could have continued as a mobile home park development after the time of the 1986 [z]oning [o]rdinance had the owner or developer of that property chosen to do so." Supervisors' Dec. at 39.
Finally, the Supervisors determined that developable land existed in the Whiteland Crest Area at the time of enactment of the current zoning ordinance. Specifically, although an 18 to 25 acre portion of this 75-acre area was ultimately condemned by the Pennsylvania Department of Transportation (PennDOT) for creation of the Exton Bypass and associated ramps, the record lacked evidence that this area was condemned or otherwise acquired by PennDOT (or that it would be condemned or otherwise acquired by PennDOT) as of 1986. Thus, the Supervisors determined that as of that time, 18 to 20 acres of land within the Whiteland Crest Area was available for the development of mobile home parks.
For these reasons, the Supervisors rejected Applicant's argument that the 1986 zoning ordinance effected a de facto total exclusion of mobile home parks. We address Applicant's attacks on the validity of the Supervisors' pertinent findings and determinations below.
C. Availability of Land for Mobile Home Park Development in the Township
1. Gilbert's Mobile Home Park
First, as to the existing Gilbert's Mobile Home Park, Applicant asserts the existence of this mobile home park may not be considered in determining whether the zoning ordinance effects a de facto exclusion of mobile home parks because it is a prior nonconforming use. See Twp. of Paradise.
Contrary to Applicant's assertions, the record supports the Supervisors' determination that Gilbert's Mobile Home Park is a "legal, conforming use." F.F. No. 94 (emphasis added); see also F.F. No. 43, Concl. of Law No. 4. Specifically, the record reveals that Gilbert's Mobile Home Park was a nonconforming use because it predated the Township's original 1957 zoning ordinance, which prohibited mobile home parks. See R.R. at 201a-02a. However, as the Supervisors determined, Gilbert's Mobile Home Park became a lawful conforming use upon the enactment of the challenged 1986 zoning ordinance, which permits mobile home parks in the R-4 district in which Gilbert's lies. F.F. No. 43; see Pennridge Dev. Enters., Inc. v. Volovnik, 624 A.2d 674, 676 (Pa. Cmwlth. 1993) (airport which was originally a nonconforming use when the township's ordinance first came into effect, became a conforming use when the district in which the property was located was rezoned to permit airports as conditional uses, which are considered "permitted use[s]").
Although Gilbert's Mobile Home Park may be nonconforming as to lot size because it is smaller than the five-acre minimum lot size required under the 1986 zoning ordinance, it is, as the Supervisors correctly determined, a "lawful, conforming" use of the property in the R-4 district. F.F. Nos. 43, 94, Concl. of Law No. 4. Applicant provides no persuasive reason to disturb the Supervisors' determination in this regard. Thus, we reject Applicant's reliance on Township of Paradise (nonconforming uses do not exist as a matter of right, and, therefore, cannot be used by municipality to justify an otherwise exclusionary zoning ordinance).
Regardless of whether Gilbert's Mobile Home Park is a conforming or nonconforming use, however, as set forth more fully below, the Supervisors correctly determined Applicant did not meet its heavy burden of proving the zoning ordinance effected a de facto total exclusion of mobile home parks. Specifically, as set forth throughout this opinion, available, developable land existed in the Township's three R-4 areas at the time the challenged zoning ordinance was enacted in 1986.
2. R-4 Whiteland Crest Area
Applicant takes issue with the Supervisors' determinations that the Whiteland Crest Area contained land available for mobile home park development when the 1986 zoning ordinance was enacted.
Contrary to Applicant's assertions, the record supports the Supervisors' determinations that at the time of the adoption of the current zoning ordinance, land remained available in this area for the development for mobile home parks. In particular, although PennDOT ultimately condemned a large portion of this area for construction of the Exton Bypass, the record does not reflect that at the time of the adoption of the zoning ordinance in 1986 that this area was not available for development.
To that end, as found by the Supervisors, Applicant's expert land planner, Dennis Glackin, testified that he did not know when PennDOT acquired the portion of the Whiteland Crest Area for development of the Exton Bypass. F.F. No. 58; R.R. at 50a ("I don't have the exact date of when the right of way was taken or whether it was -- how it was acquired by PennDOT, but that -- well, I just don't have that date.") Additionally, as the Supervisors found, a review of the 1986 zoning map reveals the Exton Bypass did not appear on the map as of that time. F.F. No. 49; R.R. at 644a.
Further, contrary to Applicant's assertions, our review of the evidence cited in Applicant's main brief and in its reply brief does not make it clear that PennDOT condemned a large portion of the Whiteland Crest Area for construction of the Exton Bypass prior to the enactment of the current zoning ordinance. Additionally, the evidence cited by Applicant does not clearly show there was insufficient acreage to allow for mobile home park development in the Whiteland Crest Area as of the time of the enactment of the 1986 zoning ordinance. Thus, no error is apparent in the Supervisors' determination that Applicant, who bore the burden of proof here, did not establish that no land within the Whiteland Crest R-4 Area was available for mobile home park development at the time the 1986 zoning ordinance was enacted.
3. Bonnie Blink/Exton Station PRD
Applicant also takes issue with the Supervisors' determination that the Exton Station Area contained available, developable land at the time of the enactment of the 1986 zoning ordinance. Specifically, Applicant asserts that, at the time the 1986 ordinance was adopted, all of this area (except Gilbert's Mobile Home Park) was developed or was in the process of being developed with the Bonnie Blink/Exton Station PRD. Specifically, at the time the current zoning ordinance was adopted, the PRD received tentative approval, the first phase of the development obtained final plan approval and was under construction, and the second phase of the development obtained final plan approval. Applicant asserts that under this Court's decision in Stahl, where available land is in the process of being developed with another use at the time a challenged ordinance is enacted, that land cannot be considered "available."
Further, Applicant argues, the Supervisors' determination that the portion of the PRD that was approved, but not yet developed, was available for development was contradicted by the testimony of the Township's Director of Planning and Zoning. R.R. at 281a-83a. Additionally, in its reply brief, Applicant contends that under Sections 706 and 710 of the Municipalities Planning Code (MPC), which govern PRDs, when a PRD receives tentative approval, it has the effect of amending the zoning map, and it provides residents of the occupied phases of the PRD with a vested interest in completion of the PRD.
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10706, 10710.
In determining that land remained available for development in the Exton Station Area at the time of the enactment of the current ordinance, the Supervisors explained (with emphasis added):
Developable land was available in this portion of the R-4 district at the time the 1986 Ordinance was adopted. Developable land was defined and articulated by experts for both the Township Staff and the Applicant as that land which is not physically developed. [Applicant's] [e]xpert witness Dennis Glackin on cross-examination testified that where a property is under final land approval, if that land itself is not physically developed, then it is developable land. [R.R. at
147a-49a.] This is similar to the status of [Applicant's][p]roperty today, which has a final land development plan approval, and is partially developed with Dunwoody Drive, but is viewed as undeveloped by the Applicant. Given the definition of developable land that was recognized, acknowledged, and agreed to by both parties to this challenge, it then logically follows that the land was available in the R-4 district for mobile home parks at the time of the 1986 [z]oning [o]rdinance had a developer wanted to construct mobile homes.Bd. Dec. at 37-38 (citations and footnote omitted). Based on our review of the record, no error is apparent in the Supervisors' determinations on this point. R.R. at 599a-601a, Ex. T-E (Memorandum of Township's Director of Zoning and Planning, 7/21/10 setting forth Bonnie Blink/Exton Station timeline of development); R.R. at 219a-223a (testimony of Township's Director of Zoning and Planning regarding the history of the Bonnie Blink/Exton Station PRD; Director was unaware of any development activities in the R-4 area of the PRD from the time of enactment of the zoning ordinance in 1986 until final approval of the fourth phase of the PRD in 1990).
Moreover, in the case of the Exton Station land, it was not until February 20, 1990 that the final plan for phase four of Exton Station was approved by the Board of Supervisors. Financial security for Hartford Square, the court of townhouses actually constructed in the R-4 district, was not even approved until October 22, 1991. And, construction of Hartford Square did not begin until after that date, five years after the adoption of the 1986 Ordinance. There is nothing to suggest to this Board that Hartford Square could not have been developed with mobile home parks had the developer so desired.
Moreover, our decision in Stahl does not compel the result Applicant seeks. There, in considering whether a township failed to provide its "fair share" of land for mobile home park development, this Court declined to consider land available for development where that land "was being developed into a townhome development at the time the ordinance was adopted." Id. at 662. Because the land "was in the process of development for another residential use at the time the township considered and ultimately adopted the ordinance[,]" we rejected a zoning board's conclusion that this land was actually available for mobile home park development. Id. at 664. Notably, however, we did not grant relief on this basis; rather, we ultimately rejected the appellant's fair share challenge because the appellant did not raise this issue in its initial petition, and the appellant did not present evidence as to the amount of undeveloped land in the township, which is a necessary element in a fair share challenge. Ultimately, we granted the appellant relief based on our conclusion that the dimensional and density restrictions of the township's mobile home park ordinance were unduly restrictive.
We reject Applicant's reliance on Stahl for several reasons. First, the ambiguous reference to "process of development" quoted from Stahl appears to be dictum, as discussed above.
Second, it does not appear this Court considered the land at issue in Stahl unavailable for development based solely on approval of a tentative or preliminary plan. Rather, we excluded this land from consideration because it was "in the process of being developed" for another residential use. Id. at 662. Here, unlike in Stahl, the Supervisors declined to exclude from their consideration that portion of the Exton Station PRD that had not received final approval until more than three years after the adoption of the 1986 zoning ordinance. No error is apparent in that regard.
Third, here, unlike in Stahl, the Supervisors acted in a manner consistent with Applicant's own expert land planner's testimony that Applicant considered its own property to be "developable land" despite the fact that it received final land development approval for an office complex because "[t]he property is vacant, hasn't been built upon, so, yes, I do [consider it developable land.]" R.R. at 148a.
Further, we reject Applicant's assertion, raised in its reply brief, that Sections 706 and 710 of the MPC, which govern PRDs, compel a different conclusion. To that end, although Section 706 of the MPC speaks to the interest of residents in the integrity of a development plan and the right of residents to enforce the provisions of such a plan, the language of Section 706 makes it clear that these rights relate to the development plan, "as finally approved." 53 P.S. §10706 (emphasis added). Indeed, Section 706 does not mention the rights of residents at the tentative approval stage. Here, when the current zoning ordinance was enacted, the Bonnie Blink/Exton Station PRD received tentative approval. F.F. Nos. 68, 70. Therefore, Applicant's reliance on Section 706 is misplaced.
In addition, Applicant points to the fact that Section 710(a) of the MPC states, when tentative approval of a PRD is granted, it shall be deemed an amendment to the zoning ordinance, effective upon final approval, and Section 710(b) prohibits a municipality from modifying or revoking a PRD that received tentative approval pending an application for final approval. 53 P.S. §10710(a), (b). However, Section 710(a)'s language regarding a PRD's effect on a zoning ordinance was not added to the MPC until 1988, nine years after the Bonnie Blink/Exton Station PRD received tentative approval. See former 53 P.S. §10710(a) (in effect prior to December 21, 1988). Also, as to Section 710(b), the first sentence of that section states: "Tentative approval of a development plan shall not qualify a plat of the [PRD] for recording nor authorize development or the issuance of any building permits." 53 P.S. §10710(b) (emphasis added). Thus, although the Bonnie Blink/Exton Station PRD received tentative approval, that did not entitle the developer to record the plan, begin development or obtain building permits. Id.
Further, the developer of the Bonnie Blink/Exton Station PRD retained the right to revise its tentatively approved plan prior to final approval. Indeed, the record here reflects that, after the developer obtained tentative approval, it submitted a revised tentative plan for the remaining phases of the PRD. F.F. No. 70; R.R. at 220a-21a, 600a.
In addition, in light of the Supervisors' supported determination that Applicant's own expert considered land "developable" despite the existence of an approved final plan, see F.F. No. 102; Supervisors' Dec. at 38; R.R. at 147a-49a, no error is apparent in the Supervisors' determination that land was available for development despite the existence of a tentatively approved PRD plan. Also, although Applicant points to the testimony of the Township's Director of Planning and Zoning regarding the availability of certain unrelated parcels for development that were subject to an approved plan, R.R. at 281a-83a, the Supervisors' supported finding indicates that they considered land "developable" even where there is a final land development approval for the property at issue. F.F. No. 102; see also Supervisors' Dec. at 37-38; R.R. at 148a-49a, 266a. Because the record supports the Supervisors' finding in this regard, we may not revisit this issue. See Pohlig Builders, LLC v. Zoning Hearing Bd. of Schuylkill Twp., 25 A.3d 1260 (Pa. Cmwlth.), appeal denied, ___ Pa. ___, 34 A.3d 834 (2011) (assuming the record contains substantial evidence, we are bound by findings that result from resolutions of credibility and conflicting testimony). In any event, a careful review of the testimony cited by Applicant reveals the Township's Director of Planning and Zoning did not agree with Applicant's counsel that the land at issue was not available for development solely because it was subject to an approved plan. R.R. at 282a-83a.
Nevertheless, for the reasons set forth throughout this opinion, even if we excluded the Exton Station Area from consideration, the record supports the Supervisors' determination that Applicant did not carry its burden of proving that other available, developable land did not exist in the R-4 district at the time of enactment of the zoning ordinance.
4. Morstein Mobile Home Park/Lewis Lane R-4 Area
Applicant also challenges the Supervisors' determination that land available for mobile home park development existed in the Morstein Mobile Home Park Area. Applicant bases this challenge on its assertion that this area was not large enough to permit a mobile home park.
To that end, Applicant asserts the record reveals that the 1986 zoning ordinance requires a mobile home park to be constructed on a minimum five-acre lot, and the Morstein Mobile Home Park Area did not contain sufficient acreage. Also, in its reply brief, Applicant indicates the Township's historic zoning maps reveal that this area is less than five acres, and the Township's Director of Planning and Zoning issued a memorandum in which he acknowledged the Morstein Area had the smallest mobile home park, which means it is smaller than the 3.2-acre property on which Gilbert's Mobile Home Park exists. Therefore, Applicant argues, contrary to the Supervisors' conclusion, the record shows that as of the enactment of the current zoning ordinance, the Morstein Mobile Home Park Area was not available for mobile home park development. Again, we disagree.
With regard to the Morstein Mobile Home Park Area, the Supervisors explained (with emphasis added):
Also within the R-4 district at the time of enactment of the 1986 [z]oning [o]rdinance existed a mobile home park development referred to herein as the Morstein Mobile Home Park. There is no competent evidence in this record of the acreage of the Morstein Mobile Home Park R-4 district area. There is only a statement of counsel that the area is 'less than five acres', which the Board does not find probative. The Applicant bears the burden of proof in this matter. Accordingly, on the basis of the record, the Board must presume that this R-4 district area consisted of at least five acres at the time of the 1986 [o]rdinance as that was the minimum lot area for a mobile home
park development, and finds that the Applicant has not overcome this presumption of validity.Supervisors' Dec. at 38-39 (citations omitted); see also F.F. Nos. 80-89. No error is apparent in the Supervisors' determinations. R.R. at 201a, 213a, 214a, 216a (testimony of Township's Director of Planning and Zoning regarding history of Morstein Mobile Home Park); R.R. at 601a (Memorandum of Township's Director of Zoning and Planning, 7/21/10 regarding aerial photograph taken in 1985 depicting 20 mobile home parks in Morstein Mobile Home Park Area); R.R. at 597a, 598a (aerial photographs depicting land in Morstein Mobile Home Park Area in 1990 and 1993).
The record supports that the Morstein Mobile Home Park, contained at least eighteen (18) mobile home units dating back to at least 1957. In 1990, that same property contained only four (4) mobile homes, in 1993, all of the mobile homes on that property were removed, and by 1998 the property was rezoned as the OL office laboratory district. However, at the time the 1986 [o]rdinance was enacted, it is undisputable that the mobile home park was in lawful existence within the R-4 district as a permitted use.
Moreover, not only was the Morstein Mobile Home Park in lawful existence when the property was zoned R-4 at the time the 1986 [z]oning [o]rdinance was enacted, and still contained mobile homes, the area plainly could have continued as a mobile home park development after the time of 1986 [z]oning [o]rdinance had the owner or developer of that property chosen to do so. Again, the aerial photography and zoning maps submitted into the record substantiate the fact that this part of the R-4 district remained undeveloped woodland during the relevant time period in 1986. In light of this, and in the absence of any testimony from Applicant to the contrary, this property was certainly available for mobile home park development at the time of the enactment of the 1986 [z]oning [o]rdinance, and for some time thereafter until the property was rezoned in 1998.
To that end, the Supervisors determined that the lone statement by Applicant's counsel that the Morstein Area was less than five acres was not sufficient for Applicant to sustain its burden. We discern no error in this regard. E.g., Dep't of Transp. v. Kappas, 621 A.2d 1204 (Pa. Cmwlth. 1993) (statements by party's counsel do not constitute evidence).
Further, a review of the memorandum and zoning maps Applicant cites in support of its contention that the Morstein Area contained less than the required minimum acreage for development of a mobile home park, fails to clearly disclose that the area is, in fact, less than five acres. Although Applicant asserts "the [Supervisors], if [they] had chosen to do so, could have independently confirmed that the Morstein property is less than the required five acres for a mobile home park[,]" the Supervisors, as fact-finder here, opted not to make such a deduction in favor of Applicant. Appellant's Reply Br. at 7 (emphasis added). We cannot substitute its interpretation of the evidence for that of the Supervisors, the fact-finder here. See Pohlig Builders.
In short, Applicant bore the burden of proving the challenged zoning ordinance effected a de facto exclusion of mobile home parks, and Applicant did not persuade the Supervisors that the Morstein Area contained less than the minimum acreage required for the development of a mobile home park. No error is apparent in the Supervisors' determinations that Applicant did not carry its burden of proof on this point.
For all the reasons stated above, we discern no error in the Supervisors' ultimate determination that, because at least 40 acres of land were available for mobile home park development at the time the challenged ordinance was enacted, the zoning ordinance did not effect a de facto total exclusion of mobile home parks. See Montgomery Crossing (rejecting challenge that ordinance effected a de facto exclusion of mobile home parks where, at the time the area that permitted mobile home parks was zoned, 45 acres were vacant, but developer opted to build apartments).
IV. "Fair Share" of Land for Mobile Home Park Development
A. Contentions
Applicant next contends, even if the nonconforming, 13-unit Gilbert's Mobile Home Park can be viewed as an obstacle to this Court finding that the Township effected a de facto total exclusion of mobile home parks, the Township did not provide a fair share of its land for mobile home park development in accordance with the "fair share" analysis set forth in Surrick.
To that end, Applicant asserts the undisputed evidence establishes: (1) the R-4 district is the only zoning district that allows mobile home parks; (2) at the time the current zoning ordinance was enacted, there was no land available for mobile home park development in the R-4 district other than the existing three-acre, 16-unit, nonconforming Gilbert's Mobile Home Park; (3) there is no land in the R-4 district that is presently available for mobile home park development; and, (4) the three acres on which Gilbert's Mobile Home Park is located represents only .036% of the Township's land (and mobile homes represent only .0024% of the Township's housing stock).
Applicant contends the percentage of Township land on which mobile home parks can be placed is far less than that deemed insufficient under the "fair share" analysis employed in Surrick, Township of Willistown v. Chesterdale Farms, Inc., 462 Pa. 445, 341 A.2d 466 (1975), McKown v. Board of Supervisors of East Fallowfield Township, 522 A.2d 159 (Pa. Cmwlth. 1987), New Bethlehem Borough Council v. McVay, 467 A.2d 395 (Pa. Cmwlth. 1983), and Appeal of Abcon, Inc., 387 A.2d 1303 (Pa. Cmwlth. 1978), and is so small it amounts to "mere tokenism."
After a lengthy discussion of these cases, Applicant contends the Supervisors and the trial court erred in applying a Surrick "fair share" analysis here because the zoning ordinance effects a total de facto exclusion of mobile home parks. See, e.g., Borough Council of Churchill Borough v. Pagal, Inc., 460 A.2d 1214 (Pa. Cmwlth. 1983) (declining to apply "fair share" analysis where ordinance at issue effected a total exclusion of a legitimate business use). As set forth above, however, we do not believe the zoning ordinance effects a total exclusion of mobile home parks; therefore, we provide an analysis of Applicant's claims under Surrick. See, e.g., Macioce v. Zoning Hearing Bd. of Borough of Baldwin, 850 A.2d 882 (Pa. Cmwlth. 2004) (fair share test was judicially developed as a means of analyzing zoning ordinances that effect a partial ban that amounts to a de facto exclusion of a particular use).
Applicant further argues the Supervisors acknowledged that the Township's geographical location places it in the path of growth. However, Applicant asserts, the Supervisors determined the Township is not required to provide a "fair share" of its land for mobile home park development because the Township is already "highly developed." Applicant contends the uncontroverted record reveals that, of the Township's 8,259 acres, somewhere between 486 and 682 acres remain undeveloped and developable. Therefore, Applicant maintains, while there is no land on which mobile home parks can be developed, there is substantial land available for development that could physically be developed with mobile home parks.
B. Analysis
Even though an ordinance does not totally prohibit a legitimate use on its face, the ordinance may be invalidated if it fails to provide for its fair share of a legitimate use within a municipality, which amounts to a de facto exclusion, although not an outright prohibition. Overstreet v. Zoning Hearing Bd. of Schuylkill Twp., 618 A.2d 1108 (Pa. Cmwlth. 1992). Our courts developed a fair share analysis to assess the exclusionary impact of zoning regulations that are alleged to be exclusionary with respect to a particular type of housing. Bd. of Supervisors of Millcreek Twp. v. BAC, Inc., 586 A.2d 1011 (Pa. Cmwlth. 1991), aff'd, 534 Pa. 381, 633 A.2d 144 (1993).
Of further note, Sections 604(4) and (5) of the MPC state that the provisions of zoning ordinances shall be designed:
(4) To provide for the use of land within the municipality for residential housing of various dwelling types encompassing all basic forms of housing, including ... mobile home parks ....53 P.S. §10604(4), (5) (emphasis added).
(5) To accommodate reasonable overall community growth, including population and employment growth, and opportunities for development of a variety of residential dwelling types and nonresidential uses.
In Surrick, the Supreme Court set forth a three-part test for a fair share analysis. Id. First, the inquiry must focus on whether the community in question is a logical area for population growth and development. Id. Next, if the community is in the path of growth, the present level of development must be examined. Id. Lastly, if the community which is located in the path of growth is not already highly developed, then the reviewing body must determine if the zoning ordinance has the practical effect of unlawfully excluding the legitimate use in question. Id. The party challenging the ordinance bears the burden of showing all three parts of the Surrick test are established. Heritage Bldg. Grp.
1. Surrick Test - Part One
As to the first part of the Surrick test, whether the community in question is a logical area for population growth and development, the community's proximity to a large metropolis and the community's and region's projected population growth figures are factors courts consider in answering this inquiry. Id. Further, this Court states that whether a community is a logical area for population growth and development depends on: projected population growth; access to major roads or public transportation; anticipated economic development; the growth of neighboring communities; proximity to a large metropolitan area; and, the amount of persons seeking permission to build. Keinath v. Twp. of Edgmont, 964 A.2d 458 (Pa. Cmwlth. 2009).
Here, the Supervisors acknowledged the Township is accessible to two major roads; however, the Supervisors determined there was little interest in the development of mobile home parks in the Township or other similarly situated municipalities.
Of further relevance to the first part of the Surrick test, the Supervisors made numerous findings, which reveal that, while the Township experienced an "explosive" growth in population between 1950 and 1980, the rate of growth slowed significantly from 1980 to the present, particularly between 2000 and 2008. F.F. Nos. 107-111. Indeed, when viewed in the context of the population growth of surrounding municipalities, it becomes clear that the Township's population growth slowed significantly in recent years. F.F. No. 106. While Applicant points to evidence presented by its land planning expert regarding the Township's projected growth from 2008 through 2035, see Appellant's Br. at 32, the Supervisors made no finding on this evidence, and they did not credit Applicant's expert evidence, opting instead to credit the expert testimony presented by the Township. See Supervisors' Op., Concls. of Law Nos. 14-15.
Further, in Overstreet, a case in which we rejected a challenge that a municipality did not allow a fair share of mobile home parks, this Court acknowledged that, in analyzing the first part of the Surrick test, "requests for mobilehomes and the attempts of developers to get permission to build them are factors in determining whether there is unmet demand for mobilehomes." Id. at 1115; see also In re Petition of Dolington Land Grp., 576 Pa. 519, 536, 839 A.2d 1021, 1032 (2003) ("The pivotal question under Surrick concerns the extent to which the ... governing bodies have employed the zoning power to more effectively meet the demands of their evolving and growing communities or whether they have instead shirked their responsibilities in order to avoid the increased responsibilities and economic burdens which time and natural growth invariably bring.") (Emphasis added) (citations and quotations omitted); Fernley v. Bd. of Supervisors of Schuylkill Twp., 509 Pa. 413, 419, 502 A.2d 585, 588 (1985) ("Cases involving de facto or partially exclusionary zoning turn on the question of whether the provision for a particular use in the ordinance at issue reasonably accommodates the immediate and projected demand for that use.") (Emphasis added.)
Although not addressed in its main brief, in its reply brief Applicant takes issue with the Supervisors' determinations that little demand exists for mobile home parks in the Township and surrounding municipalities. Specifically, Applicant asserts the record lacks evidence as to other municipalities' ordinances and whether they contain reasonable regulations permitting mobile home parks, or that applications for mobile home parks were not submitted.
Contrary to Applicant's assertions, the Supervisors made extensive findings as to the existence of mobile home parks in surrounding municipalities as well as the zoning regulations for mobile home parks in those municipalities, which are supported by the testimony of the Township's planner and related exhibits. F.F. Nos. 142-149. Additionally, the Supervisors made numerous findings regarding the minimal demand for mobile home parks. F.F. Nos. 150-154; see also F.F. Nos. 122-137. The Supervisors credited the testimony of the Township's witnesses that developers have made minimal requests to construct mobile home parks in the Township as well as in surrounding municipalities in Chester County.
Specifically, of the six mobile home park projects proposed to the Chester County Planning Commission in the last 10 years, only two of those mobile home parks presently exist. R.R. at 637a-38a. Further, the Township's expert land planner, Thomas Comitta, opined there is no real demand for mobile home units in the eastern/central regions of Chester County given that only five new mobile home units were installed over nine years in nine municipalities that total 91.36 square miles. F.F. No. 132; R.R. at 466a-67a. Also, the Township's Director of Zoning and Planning testified that, based on his research, the Township meets current demand for mobile home units. F.F. No. 153; R.R. at 263a. Thus, the record supports the Supervisors' determinations that, although the location of the Township places it in the path of growth geographically, the demand for mobile home park use is minimal.
The fact that minimal demand for mobile home parks exists is also evidenced by the history of mobile home parks in the Township. Specifically, in 1970, the largest of the Township's three mobile home parks, Hollow Run Mobile Home Park, contained a total of 38 mobile homes. F.F. Nos. 33, 36; R.R. at 207a. However, that mobile home park was dismantled and redeveloped for the Hollow Run apartment complex, which still exists today. F.F. No. 36; R.R. at 207a. Also, in 1990, the Morestein Mobile Home Park only contained three or four mobile homes, which were all removed by 1993, whereas that property previously contained 18 mobile home units in 1957. F.F. Nos. 35, 85, 86; R.R. at 213a-14a.
For these reasons, we discern no error in the Supervisors' determination that, although the Township lies in the path of growth geographically, Applicant did not prove the Township is a logical area for population and development growth. In any event, even if Applicant met its burden of proof as to the first part of the Surrick test, for the reasons set forth below, we discern no error in the Supervisors' determination that Applicant did not satisfy the second part of the Surrick test.
2. Surrick Test - Part Two
As to the second part of the Surrick analysis, regarding the present level of development, in Surrick, the Supreme Court observed, "[c]ommentators have noted, and probably correctly so, that a particular community might lie along a corridor of population expansion but already be so highly developed that it cannot properly be called a 'developing' community." Id. at 192, 382 A.2d at 110, n.9 (citations omitted).
Further, in BAC, Inc. v. Board of Supervisors of Millcreek Township, 534 Pa. 381, 386, 633 A.2d 144, 147 (1993), in which our Supreme Court determined a challenger did not carry its burden of proving an ordinance invalidly excluded mobile home parks, the Court stated (with emphasis added): "the critical inquiry into the exclusionary impact of a zoning ordinance must be conducted if it has been determined that the municipality is a logical place for growth and is not already highly developed." (Emphasis added.)
Here, the Supervisors determined the Township is already highly developed. Specifically, they found the Township consists of approximately 8,259 total acres, and the total amount of undeveloped land is 461.76 acres, or 5.58% of the Township's total land area. F.F. Nos. 97, 103, 104. Applicant argues the total undeveloped land is actually between 486 acres and 682 acres, which is approximately 6% to 8% of the Township's total land area. Thus, as the trial court pointed out, even by Applicant's own calculation, 92% to 94% of the land in the Township is already developed. See Tr. Ct., Slip Op., 5/1/12, at 18.
In Finding of Fact No. 103, the Supervisors found the total amount of developable land available for residential use, deducting constrained areas, is 106.73 acres or 1.93% of the Township's total land area. The Supervisors calculation of the applicable percentage is erroneous. When calculated correctly 106.73 acres of the Township's total 8,259 acres yields a calculation of 1.29%.
In addition, in Finding of Fact No. 104, the Supervisors found the total amount of undeveloped land zoned for non-residential use, deducting constrained areas, is 355.03 acres, or 16.52% of the Township's total area. The Supervisors calculation of the applicable percentage is erroneous. When calculated correctly 355.03 acres of the total 8,259 acreage of the Township yields a calculation of 4.29%.
Adding the percentage of available, developable residential land (1.29%) and the percentage of available, developable non-residential land (4.29%) yields a total percentage of 5.58%.
To that end, in upholding the Supervisors' determination that Applicant did not meet its burden of proving the Township is not already highly developed, the trial court stated (with emphasis added):
It is clear that the [Supervisors'] determination that the Township was already highly developed was supported by substantial evidence. In fact, the [Supervisors'] determination was supported by [Applicant's] own evidence. ...
In Heritage Building Group, the Commonwealth Court held that the trial court was correct in affirming the Plumstead Township Board of Supervisors' denial of the appellant's fair share challenge to the Township's zoning ordinance because the Township was already highly developed. A review of the opinion of the trial judge in that case indicates that Plumstead
Township had a very similar amount of undeveloped land at that time as West Whiteland Township does now [(approximately 7.64%)]. See In re: Appeal of Heritage Building Group, Inc., 2002 WL 34109808 (Bucks Co. 2002) [aff'd, 833 A.2d 1205 (Pa. Cmwlth. 2003)]; See Also In re Miller, 66 Pa.Cmw1th. 13, 444 A.2d 786 (Pa.Cmwith. 1982) (unable to say that township is highly developed when more than ten percent of the area is undeveloped)(emphasis added).Tr. Ct., Slip Op. at 18-19 (footnote omitted). Our review of the cases cited by the trial court confirms its analysis on this point. See Elocin; Heritage Bldg. Grp.; Cf. Miller. Thus, we agree with the Supervisors and the trial court that Applicant did not prove the Township was not already highly developed.
The Supervisors found that West Whiteland Township is already a highly developed suburban community. This finding was supported by substantial evidence — even the evidence proffered by [Applicant]. [Applicant's] fair share challenge to the zoning ordinance of West Whiteland Township must fail since the township contains only a 'small amount of undeveloped land' — somewhere between four and eight percent. [In re Appeal of Elocin, 501 Pa. 348, 351, 353, 461 A.2d 771, 772 (1983) (plurality opinion) (deeming municipality highly developed where approximately 4% of the municipality remained undeveloped)].
In addition, although Applicant cites Churchill for the proposition that a municipality cannot totally exclude a legitimate use, and then claim the municipality is highly developed in order to avoid a finding that its ordinance is exclusionary, Churchill is distinguishable.
Specifically, unlike the facts presented here, Churchill concerned an ordinance that facially excluded restaurants, a legitimate business use. We determined that a fair share analysis was not applicable in the case of a total exclusion of a legitimate business use. Such is not the case here because, as explained above, the zoning ordinance does not effect a total exclusion of mobile home parks.
3. Surrick Test - Part Three
Based on our conclusion that the Supervisors properly determined Applicant did not satisfy its burden of proving the first or second parts of the Surrick test, it is not essential that we address the third part of the test, i.e., whether the zoning ordinance has the practical effect of excluding mobile home parks. See Heritage Bldg. Grp. Nevertheless, as set forth more fully below, we discern no error in the Supervisors' determination that Applicant did not satisfy the third part of the Surrick test.
As the Supervisors determined, the zoning ordinance permits mobile home parks in the R-4 zoning district. Although at present there is insufficient acreage in the R-4 district to allow for a mobile home park, when the current zoning ordinance was enacted, sufficient acreage existed. F.F. No. 96. As this Court stated in Montgomery Crossing:
[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. In other words, there is no ongoing obligation on the part of the township to rezone for mobile home parks because the vacant land in the [zoning district that permitted mobile home parks] was developed for apartments.Id. at 290-91; see also Stahl, 606 A.2d at 963 ("where a municipality's zoning ordinance allocates sufficient land for a use, but the area ultimately becomes saturated by other uses, the inability to develop land does not amount to an unconstitutional prohibition of the use"). Thus, the fact that available, developable land in the R-4 district was developed for other purposes after the enactment of the zoning ordinance does not render the ordinance exclusionary. Id.
In addition, in analyzing the third part of the Surrick test, "the percentage of community land available under the zoning ordinance for [the use at issue] becomes relevant." Surrick, 476 Pa. at 194, 382 A.2d at 111.
Here, the Supervisors found, although Applicant asserted the status of development in the R-4 district at the time of enactment of the zoning ordinance in 1986 was critical to the outcome, Applicant did not present evidence in its case-in-chief as to the amount of acreage in the R-4 district in 1986. F.F. No. 44. Thus, the Supervisors were unable to make a finding as to the exact amount of acreage in the R-4 district in 1986 that was available for mobile home park development. F.F. No. 45.
Nevertheless, Applicant asserts the three acres on which Gilbert's Mobile Home Park, the last remaining mobile home park in the Township, exists represents only a .036% of the Township's land and mobile homes represent only .0024% of the Township's housing stock. As set forth above, Applicant also discusses in detail several cases in which the percentage of land available for a particular use was so small that it was deemed "mere tokenism," and, therefore, had the practical effect of excluding such uses.
Contrary to Applicant's assertions, in Overstreet, this Court explained (with emphasis added):
The Surrick case, which involved an ordinance excluding multi-family dwellings, does not contemplate a magic percentage, but rather states:
This percentage must be considered in light of current population growth pressure, within the community as well as the region, and in light of the total amount of undeveloped land in the community. Where the amount of land zoned as being available for multi-family dwellings is disproportionately small in relation to these latter factors, the ordinance will be held to be exclusionary.
Overstreet, 618 A.2d at 1116.
476 Pa. at 194, 382 A.2d at 111.
Relying on the above-quoted language, the Supervisors determined the amount of land allocated for mobile home parks in the Township was not disproportionately small in light of current population growth pressure and the high level of development in the community. Applicant offers no clear response to refute this analysis.
To that end, Applicant did not present evidence in its case-in-chief as to the amount of acreage in the R-4 district in 1986, and, therefore, the Supervisors could not make a finding as to the exact amount of acreage that was available for mobile home park development. Thus, although Applicant points to the very small percentage of land on which the last remaining mobile home park exists, the percentage of land available for mobile home park development when the zoning ordinance was enacted is unclear. Because Applicant bore the burden on this issue, and it failed to present the necessary proof, it could not satisfy its burden of proof on the third part of the Surrick test.
For all these reasons, we discern no error in the Supervisors' rejection of Applicant's argument that the Township failed to provide a fair share of its land for mobile home parks.
V. Recusal
A. Contentions
As a final issue, Applicant argues the trial judge erred in not recusing himself from adjudicating its appeal of the Supervisors' decision. Specifically, Applicant contends Canon 3(C)(1)(a) of the Code of Judicial Conduct requires a judge to recuse himself where he has personal knowledge of disputed evidentiary facts concerning the proceeding. Applicant further asserts it is not necessary to show actual prejudice arising from a judge's failure to recuse himself; rather, the appearance of prejudice or impropriety is sufficient to warrant relief. See Joseph v. The Scranton Times, L.P., 604 Pa. 677, 987 A.2d 633 (2009).
Here, Applicant contends, the trial judge was a member of the Supervisors at the time the challenged zoning ordinance was enacted, and he participated in the enactment of the ordinance as well the decisions to approve the plans for the Bonnie Blink/Exton Station PRD. Therefore, Applicant asserts, it was, in part, the trial judge's conduct in approving a zoning ordinance that limited mobile home park development to a district in which all of the land was either developed or in the process of being developed that is at issue here.
As is clear from the uncontroverted facts, Applicant maintains, the trial judge advised the parties that he was a member of the Supervisors at the time of the enactment of the challenged zoning ordinance. In response, Applicant's counsel advised the trial judge that Applicant believed it would be "problematic" for him to hear this matter, although stopping short of an outright request that he recuse himself. Applicant argues that, as made clear by the Supreme Court in Commonwealth of Pennsylvania v. Hammer, 508 Pa. 88, 494 A.2d 1054 (1985), it was not necessary for Applicant to specifically request the trial judge's recusal in order to preserve that issue for appeal. Given his participation in the adoption of the zoning ordinance that is the subject matter of its challenge, Applicant asserts, the trial judge had a duty to recuse himself irrespective of any request made by Applicant. For this reason, Applicant asks this Court not to afford any weight to the trial judge's opinion, but rather to independently evaluate the legal issues presented.
B. Analysis
In general, recusal is required whenever there is substantial doubt as to a jurist's ability to preside over a matter impartially. Dunn v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cnty., 877 A.2d 504 (Pa. Cmwlth. 2005), aff'd per curiam, 594 Pa. 410, 936 A.2d 487 (2007).
A party seeking recusal or disqualification of a trial judge must raise an objection at the earliest possible moment or the claim will be regarded as time-barred. Id. (citing Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985)). Moreover, the ultimate decision on recusal is within the sound discretion of the jurist whose recusal is sought. Id. (citing Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999)). Thus, the propriety of the trial court's ruling on a motion to recuse is reviewed under an abuse of discretion standard. Id. (citing Reilly).
Here, although Applicant asserts it informed the trial judge of its belief that it would be "problematic" for him to hear this matter because he served as a Supervisor at the time of the enactment of the challenged zoning ordinance, Applicant concedes it "stopp[ed] short of an outright request that [the trial judge] recuse himself." Appellant's Br. at 35. To that end, in its opinion, the trial court specifically indicated that Applicant never moved or petitioned for recusal despite the fact that the trial judge disclosed his prior position as a Supervisor to the parties. Tr. Ct., Slip Op. at 9. In fact, the trial judge's opinion states that over two-and-a-half months after he disclosed this fact, Applicant's counsel responded by letter in which he stated "I am not asking you to recuse yourself." Id.
From our review of the record, it appears Applicant first raised this issue in its Pa. R.A.P. 1925(b) Statement, after the trial court adjudicated its land use appeal. Indeed, Applicant concedes that it did not request that the trial judge recuse himself. See Appellant's Br. at 35. Thus, this issue is waived. See, e.g., Reilly, 507 Pa. at 222, 489 A.2d at 1300 ("Once the trial is completed with the entry of a verdict, a party is deemed to have waived his right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain following an unfavorable result."); see also Dunn.
Further, contrary to Applicant's assertions, our Supreme Court's decision in Hammer does not alter our determination that Applicant waived this issue. There, our Supreme Court declined to enforce the waiver doctrine where counsel in a criminal trial declined to raise an objection to a trial judge's misconduct during the course of a trial. In that case, our Supreme Court specifically stated, "this is not to say that in cases such as a request for judicial recusal, counsel is excused from making such a request." Id. at 100, 494 A.2d at 1060. As such, Hammer does not support Applicant's argument here.
In addition, we reject Applicant's attempt to invoke Canon 3(C) of the Code of Judicial Conduct. To that end, our Supreme Court holds:
Canon 3 C, like the whole of the Code of Judicial Conduct, does not have the force of substantive law, but imposes standards of conduct upon the judiciary to be referred to by a judge in his self-assessment of whether he should volunteer to recuse from a matter pending before him. The rules do not give standing to others, including Superior Court, to seek compliance or enforcement of the Code because its provisions merely set a norm of conduct for all our judges and do not impose substantive legal duties on them.
Similarly, we have held that the Code of Professional Conduct, applicable to the conduct of attorneys, does not have the force of substantive law.
Perceived violations of either Code do not permit the trial courts or the intermediate appellate courts to alter the rules of law, evidentiary rules, presumptions or burdens of proof. More importantly, violations of those Codes are not a proper subject for consideration of the lower courts to impose punishment for attorney or judicial misconduct. The Constitution provides a mechanism for the enforcement of violations of the Code of Judicial Conduct and the Judicial Inquiry and Review Board is authorized, on its own volition, where necessary, to investigate violations of the Code of Judicial Conduct. Upon the Board's findings and determinations recommending disciplinary action for violations of the Code, the matter is referred to this body. We then review the record and may wholly accept or reject the
recommendation as we find just and proper. This procedure, except for impeachment proceedings, is the exclusive mode established for the discipline of our judges for violations of the Code and we have not abdicated or delegated any of our supervisory authority in enforcing these standards of conduct to Superior Court. To presume that the Code or its alleged violations can be reviewed by any tribunal other than those we authorize is a misapprehension of the purpose of the Code, and is seen as an impermissible meddling into the administrative and supervisory functions of this Court over the entire judiciary.Reilly, 507 Pa. at 219-20, 489 A.2d at 1298-99 (emphasis in original) (citations omitted).
In any event, even if Applicant properly preserved this issue, in this land use appeal where the trial court received no additional evidence, we review the Supervisors' decision for an error of law or an abuse of discretion, not the trial court's decision. See, e.g., Atherton Dev. Co. v. Twp. of Ferguson, 29 A.3d 1197 (Pa. Cmwlth. 2011). As such, the trial court's decision is not directly under review here.
VI. Conclusion
For the reasons stated above, we discern no error in the Supervisors' determination that Applicant did not satisfy its burden of proving the West Whiteland Township Zoning Ordinance of 1986 effected a de facto total exclusion of mobile home parks. Additionally, we discern no error in the Supervisors' determination that Applicant did not satisfy its burden of proof under the fair share analysis set forth in Surrick. Finally, Applicant waived its contention that the trial judge abused his discretion by failing to recuse himself from adjudicating Applicant's appeal of the Supervisors' decision. Accordingly, we affirm.
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 29th day of November, 2012, the order of the Court of Common Pleas of Chester County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge