*1076DISSENTING OPINION BY
President Judge COLINS.I respectfully dissent from the decision as to Valley View Downs and would vacate and remand, both applications. I agree with Valley View Downs that the Harness Racing Commission’s decision with respect to its license application was impermissibly based on track and facilities standards not known to the applicant. The Commission’s denial of the Valley View’s license is inconsistent with its acceptance and approval of the same size track at the Chester Downs, and its characterization of Valley View’s 5/8-mile track as inconsistent with the best interests of racing and as unsafe for horses creates an impression of arbitrary and capricious decision making based on pretextual findings. The Commission’s handling of both applications creates an appearance of impropriety.
At the time Valley View Downs filed its application, two licenses were available with five applicants, including Chester Downs, but not including Bedford Downs. The Commission ruled on the Chester Downs application seven months after it was filed without comparison to the other pending applicants, then issued a policy statement changing the review process with the effect of subjecting Valley View’s pending application to competition and comparison with other applicants, including Bedford Downs, which had yet to file an application, for the one remaining license. Given the influence of the potential gaming license that would inure to the successful licensee, the Commission’s denial of Valley View’s license appears to be based less on the criteria set forth in the Reform Act and more on its own subjective evaluation of which applicant(s) will best serve the public interest, convenience, and necessity, an arguably vague standard that leads to the kind of arbitrary decision making that occurred with respect to Valley View’s license application.
Further, by remanding one matter and not the other this Court is creating the impression that it is, defacto, awarding the fifth and final harness racing license. Since the possession of the fifth and final harness racing license is predicate to the award of a casino gaming license the ramification of this Court’s actions goes well beyond a mere remand. Licensing decisions such as the instant controversy should be left exclusively to the Boards and Commissions created by the Legislature for the award of such licenses.
I would remand both matters with instructions that the Commission remedy the previous errors that resulted in the denial of due process for both applicants, and that new hearings be held with appropriate procedural and substantive due process.
Judge McGINLEY joins in this dissent.