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that the zoning ordinance is invalid because the criteria for issuing a special use permit are arbitrary, capricious and confiscatory.
When asked if the Ski Corporation planned to pursue charges that the BZA acted in "bad faith", Baumgardner replied that his client certainly wanted to do so in regard to the memorandum from the BZA to the Supervisors. In the memorandum, the BZA stated, among other things, that the entire ski area property was inadvertently zoned commercial when the zoning ordinance and maps were adopted in 1973.
Judge Penn acknowledged that the memorandum—which he described as “gratuitous”—was the only possible evidence of bad faith that he had found in his review of the case. Baumgardner added that he was also in the process of developing other new evidence that may prove pertinent to the “bad faith” question.
In answer to a question from Penn, all three attorneys—Fitzgerald, Davis and Baumgardner— indicated that they wanted to submit additional evidence to be considered in the certiorari proceeding.
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