In ,Crandell v. Pennsbury Township Board of Supervisors, et al. — A.2d — (Pa. Commw. Ct. 2009), the Commonwealth Court addressed public opposition to a plan by a Township Board of Supervisors member. Fenton, a resident who ultimately became a board member, formed a group to oppose a developer’s plans. After being elected to the board on a platform of opposing the plans, Fenton wrote various Planning Commissions seeking support, publicly spoke out against the plans at hearings, directly contacted other organizations to block the plans and acted as a consultant to an opposing citizens group. The developer filed a petition to enjoin and prohibit Fenton and another board member from taking any action with respect to the plans. The trial court determined that Fenton could not act in an unbiased fashion and prohibited him from participating in decisions and discussion regarding the plans, but allowed the other board member to remain. The trial court further required a replacement individual to participate in any vote on any matter pertaining to the plans in place of Fenton. An appeal followed.
Among other issues, the Commonwealth Court looked at whether preemptively prohibiting Fenton from participating in any decision related to the plans and appointing a replacement board member was proper. The Court focused on Section 603 of the Municipalities Planning Code which specifically protects board members’ right to vote in accordance with a campaign promise or other past statements. The Commonwealth Court distinguished Crandall from its decision in Prin v. Council of Municipality of Monroeville, 645 A.2d 450 (Pa. Commw. Ct. 1994). In Prin, the request for recusal occurred in an actual proceeding when a decision was in the process of being made. Here, the Court found the developer had bypassed the voting procedures by filing suit in advance to prohibit Fenton from not only voting, but also from expressing his opinion at board proceedings. The board had already granted preliminary plan approval and Fenton had stated an intention to refrain from future plan votes. As such, the Court found the developer no longer had any reason to fear Fenton’s vote. Silencing Fenton’s opinion in his public capacity was contrary to Section 603.
The Court also found the developer’s procedure violated the recusal procedure. Traditionally, a request for recusal is to be directed to the offending official for his own self-assessment. It is only after an official refuses to recuse himself and some substantive adverse action occurs, that the issue is reviewable. The Court found that even if the developer’s plans were presented and Fenton refused to recuse himself, the developer had a right to appeal an adverse decision to the Court. Therefore, the developer had a remedy at law and a “pre-emptive strike” was not necessary.
Finally, the Commonwealth Court found the trial court erred in ordering a replacement board member to act in place of Fenton on matters relating to development. As the board was composed of three members, a quorum consisting of at least two members was present to vote.
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