602 A.2d 459 | Pa. Commw. Ct. | 1992
Lead Opinion
The Township of Upper Merion (Township) petitions for review of the December 19, 1990 order of the State Horse Racing Commission (Commission) which granted Phase I site approval for the Valley Forge Nonprimary Location Statement (Statement) submitted by the Keystone Turf Club, Inc. (Keystone). Also before this Court are the motion to quash petition for review and the motion to dismiss for failure to raise or preserve issues for appellate review filed by Keystone.
On or about December 1, 1989, Colonial Racing Club, Inc. filed Part I (also referred to as Phase I) of its Statement with the Commission, seeking approval for a nonprimary location, also known as an off-track betting parlor, at the Valley Forge Plaza Executive Office Building in King of Prussia, Pennsylvania. Shortly thereafter, the present applicant, Keystone, became the successor in interest to Colonial Racing Club, Inc. Pursuant to Section 102 of the Race Horse Industry Reform Act (Act),
Pursuant to its regulations, at 58 Pa.Code § 171.23, the Commission held a public hearing on December 17, 1990, for the purpose of assisting it in assessing the impact that the proposed nonprimary location would have on the community in which it would be situated. A member of the Township’s Board of Supervisors testified on behalf of the Township that the plans for the proposed nonprimary location underestimated the parking spaces necessary for its operation. He said, “These parking problems will lead to traffic problems, the result will be the decline in the overall desirability of this area as an office-commercial area and increase problems for traffic safety in the township.” After the
The Township timely filed a petition for review and presents five issues to this Court. The five issues can be grouped into two categories, the first of which concerns whether the Commission violated its own procedural rules and, therefore, due process of law. The second category concerns whether the Commission’s decision is supported by substantial evidence.
Prior to reaching the merits of the present matter, we must dispose of the motions to quash and dismiss filed by the intervenor, Keystone. With regard to the motion to quash petition for review, Keystone argues that the Township is not aggrieved by the Commission’s order and, therefore, does not have standing to bring this appeal. According to Keystone, the Township’s claim is based on the common interest of its citizens and not on an injury to an interest of itself in the performance of its municipal functions, as required by case law.
In William Penn Parking Garage, Inc. v. City of Pittsburgh,
The Township’s interest in regulating parking and promoting the safety and protection of the public resembles the environmental interest discussed in Franklin Township v. Department of Environmental Resources, 500 Pa. 1, 452 A.2d 718 (1982) and the fire protection interest discussed in Township of South Fayette v. Commonwealth, 73 Pa.Commonwealth Ct. 495, 459 A.2d 41 (1983). In the former case, the Pennsylvania Supreme Court held that Franklin Township had standing to challenge the issuance of a permit for a solid waste disposal and/or processing facility because of the township’s interest in protecting its physical existence and natural surroundings, responsibilities set forth in the Code. In the latter case, this Court determined that the Township of South Fayette had standing to bring an action in mandamus to require various officials of the Commonwealth to take all necessary actions to implement a statute which required foreign fire insurance companies to report the location of all foreign fire insurance applications. This Court based its decision on the fact that The First Class Township Code
In support of its motion to dismiss the Township’s third and fifth issues, Keystone argues that the issues are waived, pursuant to Pa.R.A.P. 1551(a),
Our scope of review is limited to whether the Commission’s decision violates constitutional rights, is not in accordance with law, violates the Commission’s procedural rules, or is not supported by substantial evidence. 2 Pa.C.S. § 704.
In response, the Commission argues that the Township misinterprets the purpose of the public hearing. According to the Commission, the Township “seeks to have this Honorable Court treat the public comment hearing as an evidentiary hearing concerning Part I of the Statement in its entirety.” The Commission argues that the Township mistakenly relies on 58 Pa.Code § 165.183, which regulates the conduct of adversarial hearings regarding alleged violations of the Commission’s regulations and which does not regulate public hearings. According to the Commission, the purpose of the public hearing is “to assist the Commission in assessing the impact that a proposed nonprimary location will have on the local community as required by section 218(g)(5)(iii) of the act (4 P.S. § 325.218(g)(5)(iii)).” 58 Pa. Code § 171.23(c). We agree with the Commission that a public hearing is not the only means by which the Commission can gather information to assist it in deciding whether to approve a nonprimary location statement. The Commission has discretion to determine whether the nonprimary location statement meets the legislative intent of the Act. See Section 218(g)(5)(h), (iii), 4 P.S. § 325.218(g)(5)(h), (iii).
The Township also argues that the Commission violated its own regulations, because it approved Part I of the Statement although Keystone did not state the projected amount of tax revenues to be generated by the proposed
The Township argues next that the Commission violated its regulations, when it permitted three persons to speak at the public hearing who had not submitted their names, addresses, telephone numbers, and brief summaries of their statements to the Commission at least forty-eight hours prior to the hearing, pursuant to 58 Pa.Code § 171.-23(d). The Commission argues, in response, that it requires statements to be submitted in advance to assist it in conducting an orderly public hearing and that it “may waive this requirement if it believes that doing so will permit it to gather additional information without disrupting the proceeding.” We agree with the Commission that it may waive the requirement for advance submission of statements if
Finally, the Township argues that there is not substantial evidence to support the Commission’s decision. “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Mrs. Smith’s Frozen Foods Company v. Workmen’s Compensation Appeal Board (Clouser), 114 Pa.Commonwealth Ct. 382, 388, 539 A.2d 11, 14 (1988). The Township asserts that the Commission “ignored the only specific evidence submitted by any party at the Hearing on parking problems at the proposed [nonprimary location].” The Commission argues responsively that substantial evidence does exist to support a finding that adequate parking is available and states that the lease for the proposed nonprimary location specifically designates 250 parking spaces. Additionally, the proposed nonprimary location is situated in a convention center which has other parking available. Our review of the record reveals that there is substantial evidence to support the Commission’s determination that adequate parking is available.
Accordingly, Keystone’s motion to dismiss is denied, its motion to quash is granted as to the third issue but denied as to the fifth issue, and the order of the Commission is affirmed.
ORDER
AND NOW, this 16th day of January, 1992, the motion to dismiss in the above-captioned matter is denied, the motion to quash is granted as to the third issue (official notice) but
. Act of December 17, 1981, P.L. 435, as amended, 4 P.S. § 325.102.
. 464 Pa. 168, 346 A.2d 269 (1975).
. Act of May 1, 1933, P.L. 103, as amended, 53 P.S. §§ 65702-65754.
. Act of June 24, 1931, P.L. 1206, as amended, 53 P.S. §§ 55101-58502.
. Recently, in another case concerning approval of Part I of a nonprimary location statement, we held that residents of the local community have standing to appeal the Commission’s order granting approval. Cashdollar v. State Horse Racing Commission, 143 Pa.Commonwealth Ct. 650, 600 A.2d 646 (1991).
. Pa. R.A.P. 1551(a) states that an appellate court cannot consider a question which was not raised before the government unit except questions regarding the validity of a statute, the jurisdiction of the government unit, or questions which could not have been raised, by the exercise of due diligence, before the government unit.
. In Wiley House, the Pennsylvania Supreme Court affirmed a decision of this Court which in turn affirmed an order of the Secretary of Education denying the application of Wiley House for status as an approved private school. Wiley House argued that this Court denied it due process by reviewing only three of the forty-two findings of fact. The Supreme Court, however, stated that a court does not have to review all of the findings if it reviews those which are necessary and sufficient to support the adjudication. "Put another way, in a case involving an application for agency approval, where A, B and C are required for approval, if the applicant has not met condition B, there is no need to review A and C." 502 Pa. at 234, 465 A.2d at 998. The Supreme Court then went on to say that it is conceivable that an applicant could substantially meet all necessary and sufficient conditions for approval if condition B is relatively unimportant in the regulatory scheme.
Concurrence in Part
concurring and dissenting.
I respectfully concur in all the aspects of the majority opinion, except for that which relates to 58 Pa.Code § 171.-23(d). This code provision, in my judgment, cannot be waived unilaterally by the Commission. As I view the requirements set forth — identity of a person and a summary of their statements to be given at a public hearing— the regulation is not singularly adopted for the benefit of the Commission, but rather for the expeditious and open and fair hearing for parties of interest who may be of differing points of view.
Accordingly, I would hold that it would be essential that the parties for whom the regulation is intended to benefit would have to make the waiver, in addition to the Commission. The record is devoid of any waiver on the part of the Township in this case and, accordingly, I would vacate and remand for new public hearings in this matter.