Joseph v. North Whitehall Township Board of Supervisors, 2011 Pa. Commw. LEXIS 100

Wal-Mart acquired 40 acres in North Whitehall Twp for a planned commercial development (PC district) with a 1.7-acre AR zoned parcel.
Wal-Mart applied for conditional use approval under Section 308 for a planned commercial development; uses were described as retail/commercial (e.g., potential Wal-Mart Supercenter).
Board approved Wal-Mart’s conditional use subject to conditions (traffic security, subdivision, landscaping, and building permits contingent on not creating a significant safety hazard).
Objectors (Sustainable Development) appealed; Wal-Mart intervened; Township intervened through the same solicitor who presided at the Board hearing.
Trial court deniedObjectors’ challenges to specific provisions, remanded on drafting and 2001 conditional-use issues; Board later determined 2001 approval did not authorize the 2008 development.
On appeal, the court affirmed the Board, holding the conditional-use framework focuses on the proposed use and not the future specific tenants among staged approvals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Burden of proof for conditional use	Objectors contend Board misallocated burden.	Wal-Mart/Board argue burden aligns with conditional-use standards.	Burden properly rests on meeting Section 119.C.3 criteria; prima facie established if met.
Whether uses must be identified for the PC development at this stage	Objectors say specific uses must be proven compliant with Sections 402/403.	Board: PC conditional use reviews plan, not individual uses; uses to be determined later.	Appropriate to evaluate planned commercial development as a whole, not each specific use.
Traffic impact findings and need for traffic study	Objectors challenge traffic conclusions and lack of comprehensive traffic study.	Board relied on Wal-Mart’s traffic testimony; expert credibility resolved by the Board.	Board’s traffic conclusions supported by credible testimony; not a significant hazard/congestion.
Subpoena of Township traffic engineer	Objectors sought testimony from the township engineer to challenge traffic impact.	Administrative agencies may exclude irrelevant or duplicative evidence; cross-examination available.	Board did not abuse discretion in denying subpoena; cross-examination sufficed.
Recusal and bias concerns due to Township intervention	Objectors claim bias from Township intervention via same solicitor.	No demonstrated bias; MPC allows intervention; no due process violation shown.	No reversible procedural bias; no remand required.

In re Thompson, 896 A.2d 659 (Pa.Cmwlth. 2006) (burden on conditional-use cases; specificity of criteria controls)
In re Cutler Group, Inc., 880 A.2d 39 (Pa. Cmwlth. 2005) (conditional use standard mirrors that of special exception)
Manor Healthcare Corp. v. Lower Moreland Twp. Zoning Hearing Bd., 139 Pa.Cmwlth. 206, 590 A.2d 65 (Pa.Cmwlth. 1991) (zoning burden cannot shift evidence of detrimental impact to applicant)
Bray v. Zoning Bd. of Adjustment, 48 Pa.Cmwlth. 523, 410 A.2d 909 (Pa.Cmwlth. 1980) (burden allocation in zoning challenges)
K. Hovnanian Pa. Acquisitions, LLC v. Newtown Twp. Bd. of Supervisors, 954 A.2d 718 (Pa.Cmwlth. 2008) (appearance of bias; decisions by governing body in adjudicatory capacity)
Orthodox Minyan of Elkins Park v. Cheltenham Twp. Zoning Hearing Bd., 123 Pa.Cmwlth. 29, 552 A.2d 772 (Pa.Cmwlth. 1989) (high threshold for denying conditional uses based on traffic impact)
Nettleton v. Zoning Bd. of Adjustment of the City of Pittsburgh, 574 Pa. 45, 828 A.2d 1033 (Pa. 2003) (board as ultimate fact-finder; credibility determinations reserved)
Horn v. Twp. of Hilltown, 461 Pa. 745, 387 A.2d 858 (Pa. 1975) (appearance of bias; need for recusal when prejudice shown)
Caln Nether Co. v. Bd. of Supervisors of Thornbury Twp., 840 A.2d 484 (Pa.Cmwlth. 2004) (bias and recusal concepts; record insufficient to force recusal here)
Weiser v. Latimore Twp., 960 A.2d 924 (Pa.Cmwlth. 2008) (scope of review in non-evidentiary record appeals)