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EARL ACKERMAN AND MARGARET D. ACKERMAN v. UPPER MT. BETHEL TOWNSHIP AND BETHEL HEIGHTS ASSOCIATES (12/21/89)

decided: December 21, 1989.

EARL ACKERMAN AND MARGARET D. ACKERMAN, HIS WIFE, APPELLANTS,
v.
UPPER MT. BETHEL TOWNSHIP AND BETHEL HEIGHTS ASSOCIATES, INC., APPELLEES



Appeal from Common Pleas Court, Northampton County, Honorable Alfred T. Williams, Jr., PRES. JUDGE.

COUNSEL

Ronald W. Shipman, Shipman & Grifo, Easton, for appellants.

Richard J. Haber, Haber & Corriere, Bethlehem, for appellee, Upper Mt. Bethel Tp.

John Molnar, Cassebaum, McFall & Molnar, P.C., Bangor, for intervenor, Bethel Heights Associates, Inc.

Craig and Barry, JJ., and Barbieri, Senior Judge.

Author: Craig

[ 130 Pa. Commw. Page 255]

Earl and Margaret Ackerman appeal an order of President Judge Williams of the Court of Common Pleas of Northampton County that dismissed their appeal challenging the Upper Mount Bethel Township Board of Supervisors' adoption of a zoning amendment as violating section 4*fn1 of the Sunshine Act.

The facts are not in dispute. On October 13, 1987, Bethel Heights Associates, Inc. (BHA)*fn2 petitioned the board to amend the township's zoning ordinance classification for a tract of land BHA had planned to develop. On November 9, 1987 and November 16, 1987, the board published notices of

[ 130 Pa. Commw. Page 256]

    a public hearing on the proposed amendment to be held November 30, 1987 at 7:30 p.m.

Supervisor Allen Haddad had become an appointed member of the board on September 16, 1987. Because of his recent appointment, Haddad had questions regarding the proposed amendment and BHA's planned development.

On the morning of November 30, 1987, Haddad told Supervisor Ronald Angle that he felt unprepared for the evening's public meeting and vote on the proposed amendment. Angle suggested that they meet with Roy Olsen of BHA that afternoon in conference to "bounce the issues off" Olsen. Supervisor Earnest Gearhart, the township's third supervisor, received notice of the conference but chose not to attend, citing concern as to its legitimacy under the Act.

At 4:00 p.m. that afternoon, Haddad, Angle, and Olsen assembled at the township building. The conference lasted approximately 30 minutes. During the conference, Haddad questioned Olsen about the proposed amendment and BHA's planned development under the proposed amendment. Because of other business in the office, Angle sat in on the conference for approximately 10 minutes, asking only a few questions.

At 7:30 p.m. that evening, the board held a public hearing on the proposed amendment. During the public hearing, Haddad acknowledged that the group had assembled earlier in the day to clarify Haddad's questions regarding the proposed amendment and BHA's planned development. After extensive public debate, the board unanimously adopted the proposed amendment.

On December 30, 1987, the Ackermans appealed the adoption of the zoning amendment to the trial court.

President Judge Williams decided that a violation of section 4 did occur. However, he refused to set aside the amendment and dismissed the appeal, citing the trial court's discretion under section 13*fn3 of the Act.

[ 130 Pa. Commw. Page 257]

On appeal, the Ackermans contend that (1) the afternoon conference between Haddad, Angle, and Olsen violated the Act's open meeting requirement under section 4, and (2) because of the group's violation of section 4, the vote on the zoning amendment at the board's evening public meeting must be invalidated under section 13 of the Act.

Where the trial court takes additional evidence and decides a case de novo, this court's scope of review is limited to whether the trial court committed an abuse of discretion or error of law. Claremont Properties, Inc. v. Board of Supervisors, Middlesex Township, 118 Pa. Commonwealth Ct. 527, 546 A.2d 712 (1988).

1. Sunshine Act Violation

The Ackermans first contend that the afternoon conference between Haddad, Angle, and Olsen violated section 4 of the Act.*fn4

Because of the limited case law interpreting the Sunshine Act, we must examine the Act's purpose, set forth in section 2.*fn5

Legislative findings and declarations

(a) Findings -- The General Assembly finds that the right of the public to be present at all meetings of agencies and to witness the deliberation, policy formulation and decisionmaking of agencies is vital to the enhancement and proper functioning of the democratic process and that secrecy in public affairs undermines the faith of the public in ...


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