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10/24/97 EAST LAMPETER TOWNSHIP v. PENNSYLVANIA

October 24, 1997

EAST LAMPETER TOWNSHIP, PETITIONER
v.
PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT; LANCASTER COUNTY PENNSYLVANIANS AGAINST GAMBLING EXPANSION, PETITIONER V. PENNSYLVANIA STATE HORSE RACING COMMISSION, RESPONDENT



Appealed From No. Orders dated 10/18/95, 3/13/96 & 7/8/96. State Agency, State Horse Racing Commission.

Before: Honorable Bernard L. McGINLEY, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Jiuliante

PER CURIAM

ORDER

AND NOW, this 23rd day of December, 1997, it is ORDERED that the above-captioned opinion filed October 24, 1997 shall be designated OPINION rather than MEMORANDUM OPINION, and it shall be reported.

OPINION BY SENIOR JUDGE JIULIANTE

FILED: October 24, 1997

East Lampeter Township and the Lancaster County Pennsylvanians Against Gambling Expansion (PAGE) (collectively, the Township) *fn1 petition for review from a July 8, 1996 order of the Pennsylvania State Horse Racing Commission (Commission) which gave final approval to Penn National Turf Club's (Penn National) application for an off-track wagering facility (OTW) in Lancaster County, Pennsylvania. We affirm.

On August 3, 1995, Penn National filed Part I of a nonprimary location statement (statement) *fn2 with the Commission seeking approval of an OTW in East Lampeter Township, Lancaster County, Pennsylvania. This three-part statement is required when a licensed corporation seeks to establish a facility in a nonprimary location. *fn3 58 Pa. Code '171.21 (the Code).

Pursuant to sections 171.22(b) and 171.23 of the Code, the Commission advertised a notice of a public hearing to be held on September 12, 1995 at the Holiday Inn located in Lancaster County. *fn4 58 Pa. Code "171.22(b), 171.23. The advertisements of the public hearing appeared in the New Era and the Intelligencer Journal on August 31, September 1, 2, and 3, 1995. The purpose of the hearing was to receive public comment on the proposed facility. 58 Pa. Code '171.23(b).

At the September 12, 1995 hearing, Penn National presented a slide program that gave on overview of the OTW itself and of the factors the Board needed to weigh in its consideration of Penn National's statement. *fn5 Also present at the hearing were various members of the community. Pursuant to section 171.23(d) of the Code, approximately sixteen persons spoke regarding Penn National's statement. 58 Pa. Code '171.23(d). With the exception of one individual, all the speakers opposed the OTW. In addition, the Township presented the Commission with literally hundreds of letters and petitions in opposition to the OTW.

On October 18, 1995, the Commission entered an order approving Part I of Penn National's statement, which only approved the site of the facility. The Township filed a petition for review on November 17, 1995. This Court quashed the petition as interlocutory. Penn National filed Part II of its statement on February 1, 1996, which was approved by the Commission on March 13, 1996. Penn National submitted Part III of its statement on June 11, 1996. The Commission approved Part III on July 8, 1996. *fn6 This appeal followed. *fn7

The Township has presented the following issues for review: 1) whether the Commission abused its discretion when it held the public hearing pursuant to 58 Pa. Code '171.23; 2) whether the Commission abused its discretion and erred as a matter of law in failing to consider the detrimental effect of the OTW on the local community; 3) whether the Commission abused its discretion and erred as a matter of law by equating the public interest with the effect that an OTW would have on the racing industry; and 4) whether the Commission's findings are supported by substantial evidence of record. *fn8

The Township first maintains that the Commission abused its discretion when it held its hearing on the OTW. The Township's argument is two-fold: that the Commission did not give adequate notice of the hearing and that the hearing should have been held at a facility within the Township.

Section 171.23(b) of the Code provides that the notice of public hearing shall be published on at least 4 consecutive days in a prominent section of a newspaper of general circulation for the ...


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