Posted by: Patricia Salkin | December 4, 2009

Change in Board Membership After Vote on Application but Before Written Decision Does Not Invalidate Vote; and No Ethical Violation in Meeting with Applicant Before Submission

Following zoning board approval of a conditional use permit in December 2005 for a 225,000 sq. ft. Wal-Mart Supercenter and Tire Lube Express Store after 16 public hearings on the application which had commenced in July 2005, neighbors challenged the 2-1 vote to approve since one board a member was replaced on January 3, 2006 before a written decision was issued. The opponents of the approval asserted that this made the vote 1-1.

The Court of Pleas upheld the board’s decision, and the Pennsylvania Commonwealth Court agreed, holding that the final decision of the board occurred at the December 28, 2005 meeting, and not the date the written decision with findings of fact was issued. The Court relied in part on the Commonwealth’s Open Meetings Law, stating, “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.”

Project opponents also asserted that the Township Supervisor should have recused himself from voting alleging that he had 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 that his alleged statements in local newspapers that he believed that the road improvement that the development would bring would improve traffic conditions. In acknowledging that the Supervisor and staff met with Walmart three times before an application was submitted, the Court said that state law only prohibits communications between the board and parties to a hearing only after commencement of the hearing. With respect to the Supervisor’s statements to local newspapers, the Court said that this cannot necessarily be interpreted as support for the development. The Court explained that the Supervisor “merely noted his belief that traffic conditions would improve if the property was developed. He did not state that the property should be developed, a statement which would have indicated prejudgment or a degree of actual bias.” 

Appeal of Arnold, 2009 WL 3644797 (PA. Commwlth Ct. 11/5/2009).

The opinion can be accessed at:

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