Dissenting Opinion By
Judge Kramer:I respectfully dissent. While I agree with the majority that this record does not support the first two *84findings of the Secretary, the record, in my opinion, does support the Secretary’s third finding.
We are directed by Section 44 of the Administrative Agency Law, Act of June 4, 1945, P. L. 1388, as amended, 71 P.S. §1710.44 to affirm the adjudication of an agency “. . . unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law, or that the provisions of sections thirty-one to thirty-five inclusive of this act have been violated in the proceeding before the agency, or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence.”
Furthermore, the majority would put the burden on the Department of Community Affairs (Department) “to show some authority in the Constitution or the statutes for the Secretary’s denial to an otherwise qualified municipality. . . .” As I read the statute, The Land and Water Conservation and Reclamation Act, Act of January 19, 1968, P. L. (1967) 966, §16(b), as amended, 32 P.S. §5116(b), the burden was on the municipality to prove that it met all the requirements, and thereafter it was a matter within the discretion of the Secretary to determine the “advisability of granting State aid.” Section 16(b)V reads in pertinent part: “The Department of Community Affairs shall be empowered to promulgate rules and regulations, undertake studies and employ personnel and consultants and provide grants to political subdivisions to undertake studies as necessary in order to properly administer this act and to determine the recreation and park needs of political subdivisions and the advisability of granting State aid.” (Emphasis added.)
The statute does not say to me that, like a special exception in a zoning case, once the political subdivision submits an application it is automatically entitled to the funds. If that were the case, then one political *85subdivision could submit an application which would utilize the entire State fund available and no other political subdivision would be able to obtain any funds for its needs. Clearly the legislative intent was to place the granting of such funds within the discretion of the Secretary, and an appellate court should only interfere if the record discloses an arbitrary, capricious, unreasonable or unfair refusal. Here, Upper St. Clair Township already has received $325,000, as one of 13 grantees in Allegheny .County in the past five years. It cannot now say that it has been treated unfairly.
As I read this record and the applicable law, Upper St. Clair Township has not met its burden of proving an improper abuse of discretion insofar as finding number three is concerned, and therefore, I would affirm the adjudication of the Secretary and dismiss the appeal.