Caln Nether Company, L.P., v. Board of Supervisors of Thornbury Township, (Pa. Cmwlth. 2003), 840 A.2d 484
Note: Appeal Denied
The Commonwealth Court affirmed the rejection of a curative amendment challenge that asserted the Thornbury Township Zoning Ordinance unlawfully excluded car dealership use. The Court agreed with the trial court and the Board of Supervisors when they concluded that the Ordinance permitted a car dealership in a business zone under the “retail store” use classification.
In addition, the Court also rejected claims relating to the outdoor storage and display of vehicles. The Landowner unsuccessfully argued that the Ordinance was (1) de jure exclusionary because car dealership does not fall within the meaning of “retail store” and (2) de facto exclusionary because of its prohibitions on outside storage and front yard display of vehicles.
The Commonwealth Court also denied the Landowner’s claims that two Supervisors should have recused or disqualified themselves from the proceedings. In the present case, two Supervisors lived in the development adjacent to the landowner. The Court stated that proximity to a project does not have an effect of preclusion of a public official from properly performing his duties. Although, the appearance of non-objectivity is sufficient to trigger judicial scrutiny, before the Court will find that a judge or supervisor should have recused herself, the record must demonstrate bias, prejudice, capricious disbelief or prejudgment. The court further stated that if the judge or supervisor thinks she’s capable of hearing the case fairly her decision not to withdraw will ordinarily be upheld on appeal.
Lastly, the Court denied the Landowner’s claim that the trial court erred in refusing to hear additional evidence relating to Ordinance changes enacted to cure the defects asserted in his curative amendment challenge. The Court stated that additional evidence may be received by the trial court only where a party demonstrated that the record is incomplete because he was denied an opportunity to be fully heard or because relevant testimony was offered and excluded. The Court reiterated that later-enacted changes are not admissible in attempting to prove an ordinance was exclusionary at the time when a landowner brought a curative amendment.
In a footnote, the Court advised that the capricious disregard standard of review is an appropriate component of appellate review, citing the Pennsylvania Supreme Court’s decision in Wintermyer. However, the Court held that the issue was waived here because Caln Nether had not raised it in its 1925(b) Statement.
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