Appeal from the Order of the Department of Community Affairs in case of In Re: Application of the Township of Upper St. Clair for Project 500 development funds, Order of July 23, 1973.
Frank R. Bolte, with him Robert N. Hackett and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for appellant.
Lawrence Silver, Deputy Attorney General, with him David L. Kurtz, Deputy Attorney General, Allen Warshaw, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.
President Judge Bowman and Judges Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Crumlish, Jr., did not participate. Opinion by Judge Rogers. Dissenting Opinion by Judge Kramer.
Upper St. Clair Township, Allegheny County, has appealed from an adjudication of the Secretary of the Department of Community Affairs denying its application for so-called Project 500 Development Funds. The Secretary's adjudication made August 17, 1972, is as follows:
"The application of the Township of Upper St. Clair for Project 500 Development Funds for the Brookside Park Project pursuant to the 'Land and Water Conservation and Reclamation Act,' Act of January 19, 1968, P.L. (1967) 996, 32 P.S. Sec. 5101 et seq., as evidenced by Letter of Intent submitted December 13, 1971, and Part I Application simultaneously submitted, is hereby denied.
"Applicant has failed to persuade the Department of Community Affairs:
"1. That it is not presently engaging in, and does not intend to continue engaging in, exclusionary development policies, that is, zoning and other land-use control practices that effectively preclude construction of dwelling units that could house minority, and low-income and (in some cases) middle-income families, either by direct exclusion or by raising the price of residential development;
"2. That such exclusionary development policies would not adversely affect access by minorities and the poor to the proposed project facilities;
"3. That, in terms of the limited resources presently available, the proposed project would effectively serve the most pressing community needs.
William H. Wilcox, Secretary"
The Township filed exceptions to the adjudication and the Secretary appointed a panel to conduct an evidentiary hearing pursuant to Sections 31 through 33 of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, 71 P.S. §§ 1710.31 through 1710.33. The panel, after hearing, produced a report with findings and conclusions to the effect that Upper St. Clair Township is an "exclusive" community and that its zoning ordinance is "exclusionary." It recommended that the Secretary adhere to his previous denial of funds. The Secretary dismissed exceptions filed by the Township, adopted the panel's report and again denied the appellant's application.
The only evidence produced before the panel relevant to the issue of the propriety of the Secretary's third basis for his adjudication -- the asserted failure of the Township to persuade the Department "[t]hat in terms of the limited resources presently available, the proposed project would effectively serve the most pressing community needs" -- was the following testimony
of the Director of the Bureau of Recreation and Conservation of the Department of Community Affairs: "Q. Before the attorney general's opinion came down on January 13, had Upper St. Clair Township gotten its fair share of Project 500, in its predecessor Project 70 funds? A. I would have some difficulty in telling you what a fair share would be. Let me assume that a fair share would be something on the order of one man, $1.00. Q. Proportional figure. A. The department has provided considerable assistance in the past to Upper St. Clair Township. As an example, the department has assisted some 13 municipalities in the county, under this program, in the past five years. Upper St. Clair Township has received assistance on approximately six projects. They would be fourth in line, as far as the amount of funds. They have received approximately $325,000 from the Commonwealth to date. This would, in summary, to me this would [sic], in my experience, mean that Upper St. Clair Township has very definitely received at least their fair share, if not more of the advantages of this Commonwealth program. Chairman Cavanaugh: I am sorry, did you say there were 115 projects funded by the state? The Witness: There have been 13 projects in Allegheny County -- I beg your pardon, there have been 13 municipalities within Allegheny County that have received assistance. Upper St. Clair Township is one of those, and is in the top bracket of those municipalities, as far as the amount of funds that they have received; fourth in order. Chairman ...