Appeal from the Order of the Court of Common Pleas of Clarion County in case of John McVay, Executor of the Estate of Susan McVay, Deceased, and Federal Development, Inc. v. Zoning Hearing Board of New Bethlehem Borough, Clarion County, Pennsylvania, No. 295 C.D. 1982.
William R. Strong, for appellant, New Bethlehem Borough.
No appearance for appellee.
Judges Craig and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Craig.
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Where a majority of the members of a zoning hearing board, before being appointed to that board, had signed and filed petitions in opposition to the adoption of a zoning ordinance amendment to rezone property for a low cost housing project, is their subsequent action as board members, denying a special exception for the same project, void by reason of bias?
New Bethlehem Borough Council v. McVay, 78 Pa. Commonwealth Ct. 167, 467 A.2d 395 (1983) (McVay I), involved another phase of this matter, consisting of a challenge by the same landowner, the McVay Estate, to the validity of New Bethlehem's zoning ordinance.
This court's opinion there recited antecedent history: In connection with a forty-unit low-income housing project approved by county and federal housing agencies on the basis of a resolution of need which the New Bethlehem Borough Council had adopted, that same council had agreed to rezone the McVay land from R-1, single-family residence only, to R-2, which allows multiple dwellings. However, on August 31, 1981, the council, after a public hearing on that rezoning
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amendment proposal, refused to enact any rezoning.
The estate and developer then undertook two alternative courses. Under section 1004 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11004, they presented a curative amendment validity challenge which ultimately came before us in McVay I, contending that the borough zoning was exclusionary in that it did not provide a fair share of land for multi-family dwelling uses. After the borough council had rejected that challenge, the estate and developer appealed to the Court of Common Pleas of Clarion County, which upheld the challenge. Our McVay I decision reversed, concluding that the ordinance was not exclusionary because it contained special exception provisions allowing multi-family dwellings throughout much of the borough, including the R-1 district, as components of planned residential development (PRD).
In the meantime, the estate and developer had also pursued that PRD special exception route before the zoning hearing board. (Although the ordinance labels the PRD allowance as a "conditional use," precise statutory label for such a development permission is "special exception," in accordance with MPC §§ 603, 913, 53 P.S. §§ 10603, 10913.)
Because New Bethlehem had never staffed the membership of its zoning hearing board, the council proceeded to appoint its five members in November of 1981. At least a majority of those appointees were among those persons who three months earlier had signed and ...