In re Arnold

• Decision Date: 13 August 2009
• Docket Number: No. 147 C.D. 2008.,147 C.D. 2008.
• Citation: 984 A.2d 1
• Parties: In re The Appeal of Edward H. ARNOLD, V. Rita Goe and Harrall Robinson from the Decision of North Cornwall Township Board of Supervisors. In re The Appeal of Citizens for Responsible Growth, Ellie Salahub and Mary Jane Smith from the Decision of North Cornwall Township Board of Supervisors Regarding the Wal-Mart. Appeal of Citizens for Responsible Growth, Ellie Salahub, Mary Jane Smith, Edward H. Arnold and V. Rita Goe.
• Court: Pennsylvania Commonwealth Court

984 A.2d 1

In re The Appeal of Edward H. ARNOLD, V. Rita Goe and Harrall Robinson from the Decision of North Cornwall Township Board of Supervisors.

In re The Appeal of Citizens for Responsible Growth, Ellie Salahub and Mary Jane Smith from the Decision of North Cornwall Township Board of Supervisors Regarding the Wal-Mart.

Appeal of Citizens for Responsible Growth, Ellie Salahub, Mary Jane Smith, Edward H. Arnold and V. Rita Goe.

No. 147 C.D. 2008.

Commonwealth Court of Pennsylvania.

Argued September 8, 2008.

Decided August 13, 2009.

Ordered Published November 5, 2009.

J. Dwight Yoder, Lancaster, for appellants.

John C. Goodchild, III and Abby J. Kaplan, Philadelphia, for appellee, Wal-Mart Real Estate Business Trust.

BEFORE: LEADBETTER, President Judge, COHN JUBELIRER, J., and McCLOSKEY, Senior Judge.

OPINION BY President Judge LEADBETTER.

Appellants appeal the grant of a conditional use application by the North Cornwall Township Board of Supervisors (Board), which permits the construction of a 225,000 square foot Wal-Mart Supercenter and Tire Lube Express store.

The subject of this dispute is 38.5 acres of land (Property) located along Cornwall Road in North Cornwall Township (Township) owned by the Wal-Mart Real Estate Business Trust (Wal-Mart). In August 2003, the Township rezoned the Property from office and institutional (O & I) to general commercial (C-2).¹ On May 6, 2005, Wal-Mart filed a conditional use application with the Board seeking approval to construct a Wal-Mart Supercenter retail store on 29.8 acres. The Board held a series of 16 public hearings on the application starting on July 12, 2005. Numerous objectors including Township residents and non-residents presented evidence and testified at the hearings. The Board concluded receipt of evidence and public comment at the December 12, 2005 hearing and announced that the hearing was continued until December 28, 2005, for deliberation and possible decision. On December 28, 2005, the Board² voted 2-1 to approve the application subject to several conditions. The votes were cast in writing and read into the record.

On January 3, 2006, Ralph Heister replaced Charles Brooks as a member of the Board. At the January 19, 2006 meeting, the Board approved the issuance of the written notification of the conditional use decision in accord with the December 28, 2005 decision, along with the required findings and conclusions. The Township's special counsel mailed written notice of the December 28, 2005 decision accompanied by the required findings and conclusions on January 23, 2006.

Appellants filed Notices of Appeal with the Court of Common Pleas of Lebanon County (common pleas) on January 27, 2006, challenging the Board's approval of the conditional use application. Wal-Mart timely intervened in the appeals, but did not appeal the imposition of any of the conditions imposed by the Board. Common pleas issued two opinions³ on April 5, 2007, and December 19, 2007, upholding the Board's decision and denying Appellants' land use appeals. This appeal followed.⁴

I. DOES A CHANGE IN THE BOARD'S MEMBERSHIP BEFORE ISSUANCE OF A WRITTEN DECISION INVALIDATE A PRIOR VOTE?

A. What is the final decision of the Board?

Appellants assert that the December 28, 2005 vote was not the final decision of the Board, but rather that the January 23, 2006 written decision constituted the Board's final decision because it was in writing. Further, Appellants assert that because the January 23, 2006 written decision was issued when Supervisor Brooks was no longer a member of the Board, that the decision reflected a 1-1 vote instead of a 2-1 vote. Thus, we determine whether the vote conducted at the December 28, 2005 meeting or the written decision issued on January 23, 2006, constituted the final decision of the Board. The Pennsylvania Municipalities Planning Code⁵ (MPC) requires that a governing body ruling on a conditional use application must render a written decision within 45 days after the last hearing before the governing body.⁶ Section 913.2(b)(1) of the MPC, added by Act December 21, 1988, P.L. 1329, 53 P.S. § 10913.2(b)(1).

In order to determine the outcome of this issue, we consider both Section 913.2(b)(1) of the MPC, 53 P.S. § 10913.2(b)(1), and the Pennsylvania Sunshine Act. Section 705 of the Sunshine Act requires that:

[i]n all meetings of agencies, the vote of each member who actually votes on any resolution, rule, order, regulation, ordinance or the setting of official policy must be publicly cast and, in the case of roll call votes, recorded.

65 Pa.C.S. § 705. Section 703 of the Sunshine Act defines "official action" as:

(1) Recommendations made by an agency pursuant to statute, ordinance or executive order.

(2) The establishment of policy by an agency.

(3) The decisions on agency business made by an agency.

(4) The vote taken by any agency on any motion, proposal, resolution, rule, regulation, ordinance, report or order.

65 Pa.C.S. § 703. In addition, the Sunshine Act requires that official action and deliberations must take place at a meeting open to the public. 65 Pa.C.S. § 704.

In Pae v. Hilltown Township Zoning Hearing Board, 35 Pa.Cmwlth. 229, 385 A.2d 616 (1978), the landowners asserted that the oral decision made at a zoning hearing board meeting was not the formal action required by the Sunshine Act because Section 908(9) of the MPC requires a written decision. This court rejected landowners' contentions. Further, a decision of the zoning hearing board issued in writing but not publicly announced is invalid. Bruno v. Zoning Bd. of Adjustment, 664 A.2d 1077, 1079 (Pa.Cmwlth.1995) [citing Skopic v. Zoning Hearing Bd. of Hemlock Twp., 80 Pa. Cmwlth. 60, 471 A.2d 123 (1984)]. In Bruno, this court held that where the Philadelphia Zoning Board of Adjustment orally voted to deny a use variance, but the board erroneously issued a notice that the use variance was granted, the oral vote of the board constituted a valid adjudication. Bruno, 664 A.2d at 1079.

Further, Zoning Ordinance § 20.7.C.2 provides that the Board must render a final decision within 30 days after the adjournment of the public hearing and that the solicitor must correspond with the applicant in writing within 15 days following the final decision informing the applicant of the decision. Section 20.7.C.2 also states that the decision of the Board shall be accompanied by findings of fact and the conclusions based thereon. Thus, § 20.7.C.2 contemplates that the final decision of the Board is something different than the written decision issued by the Board.

In addition, the MPC requires that a governing body render a written decision within 45 days. The 45 day requirement is meant to ensure that applicants do not suffer undue delay at the hands of a governing body. Section 913.2(b)(2) of the MPC provides a remedy for applicants when the governing body fails to issue a written decision within 45 days. Section 913.2(b)(2) of the MPC provides in relevant part:

[w]here the governing body fails to render the decision within the period required by this subsection ... the decision shall be deemed to have been rendered in favor of the applicant ...

53 P.S. § 10913.2(b)(2) (emphasis added). The requirement that the governing body issue a written decision exists for the benefit of an applicant and the appellate courts. See Bruno, 664 A.2d at 1079 (the requirement that adjudications be in writing goes to the reviewability of an adjudication, not to its validity). Thus, the written decision provides a basis upon which the applicant and appellate courts can assess the validity of land use claims.

To hold that the January 23, 2006, written decision was the final decision of the Board would vitiate the Sunshine Act's requirement that all official action, such as votes, take place at a public meeting. Finding that the written decision of a governing body is the final decision would open the door to a governing body voting one way at the open meeting and then issuing a written final decision at odds with the vote. Washington Twp. v. Gillette, 26 Pa. D. & C.4th 92 (C.P. Erie 1994) (written decision of a township zoning hearing board which differs with public pronouncement of the decision is void under the Sunshine Act). It is inconceivable that the written decision should conflict with the public vote; thus the only purpose of issuing a written decision is to explain the reasoning and basis for the vote.⁷

This court concludes that in accord with the mandates of the Sunshine Act, the final decision of the Board occurred when it voted at the public meeting on December 28, 2005. Thereafter, the Board complied with requirements of the MPC, issuing a timely written explanation of the reasons for the Board's final decision.

II. WAS SUPERVISOR BROOKS REQUIRED TO RECUSE HIMSELF?

Appellants assert that Supervisor Brooks should have recused himself for the following reasons: (1) he met with representatives of Wal-Mart regarding possible development of the Property prior to submission of Wal-Mart's application for a conditional use; and (2) his alleged statements in local newspapers that he believed that the road improvement the development would bring would improve traffic conditions.

Due process requires a local governing body in the performance of its quasi-judicial functions⁸ to avoid even the appearance of bias or impropriety. A showing of actual bias is unnecessary in order to assert a cognizable due process claim; the mere potential for bias or the appearance of non-objectivity may be sufficient to constitute a violation of due process. Christman v. Zoning Hearing Bd. of Twp. of Windsor, 854 A.2d 629 (Pa. Cmwlth.2004) [citing Kuszyk v. Zoning Hearing Bd. of Amity Twp., 834 A.2d 661, 665 (Pa.Cmwlth.2003)]. However, "while an appearance of non-objectivity is sufficient to trigger judicial scrutiny, the significant remedy of invalidation often depends on something more tangible." Caln Nether Co.,...