In re Incorporation of Borough of New Morgan

BARRY, Judge,

dissenting.

I must respectfully dissent to the majority opinion.

The motivation for the incorporation of the Borough of New Morgan, as acknowledged by the court-appointed Borough Advisory Committee and the majority opinion here, was to bypass the zoning and land development restrictions of Robeson and Caernarvon Townships on the uses sought to be developed by Morgantown Properties, i.e., a landfill and trash to steam plant. We agree with the majority that we cannot rely on Two Ponds, Inc. Appeal, 87 Pa.Cmwlth. 324, 489 A.2d 939 (1985), to dispose of this question inasmuch as the Court decided that case on a different issue. I would find, however, that the case now before us provides an appropriate vehicle by which to affirmatively state that the type of subversion of zoning and land use planning *536present in this case is not an appropriate motivation for the incorporation of a borough. I simply do not believe that the intent of the legislature in enacting the incorporation provisions of The Borough Code encompassed a scheme such as that proposed here. I would conclude, then, that the trial court abused its discretion in granting this incorporation petition. See Canterbury Village, Inc. Appeal (In Re: Incorporation of Borough of Seven Fields), 75 Pa.Cmwlth. 334, 342, 462 A.2d 865, 870 (1983), where this Court found an abuse of discretion, reversed a trial court and concluded:

True, the question of whether or not to grant a petition for borough incorporation is addressed mainly to the discretion of the trial court. Yet, it is not beyond.our scope of appellate review to decide whether the trial court has committed an abuse of discretion. Whitehall Borough Incorporation Case, 358 Pa. 90, 55 A.2d 746 (1947).

Further, the trial court denied a motion to disqualify two members of the court-appointed Borough Advisory Committee which was based on allegations of bias. As stated in the majority opinion, two so-called New Morgan committee members stated before the hearings were concluded that they intended to vote for it. Further, one of the members is employed full time by applicant, and both of the New Morgan committee members are tenants of applicant. I believe the trial court should have made findings of fact on the issue of bias. The absence of such findings renders the trial court’s order and opinion incapable of meaningful appellate review. Accordingly, with respect to this issue I would remand the case for the purpose of having the trial court comply with the provisions of Pa. R.A.P. 1925(a). Michaels Development Co., Inc. v. Benzinger Township Board of Supervisors, 46 Pa.Cmwlth. 337, 407 A.2d 895 (1979).

In conclusion I dissent to the majority opinion on two alternative grounds. First and foremost I believe a reversal is in order based on the issue of motivation. Second, I believe the case should, at least, be remanded for findings of fact on the issue of bias.